- The upper end
of the estimate for the fatal shot (4.1 metres), if measured from the bottom-most
surviving stair tread, only just reaches the doorway from the hall into the
breakfast room. According to Fearon, and as he demonstrated on the video,
when he heard the shots he was in the middle of the breakfast room almost
in front of the exterior door slightly towards the kitchen end of the room.
From the plan, this point would be at least 4 metres further on from the doorway
at the foot of the stairs. He told the police that he thought Barras was following
closely behind him. A holdall which the men had brought with them, which was
found to contain silver articles belonging to Mr Martin and which it was suggested
that Barras had been putting into that holdall (JE2) was also found a similar
distance away from the internal doorway. The passage of shot inside Barras's
body was angled at about 45 degrees upwards from the point of entry. It was
suggested that this was explicable on the basis that he was bending down to
put something in the bag when he was shot.
- Dr Renshaw on
behalf of the defendant did not give evidence on any of these matters, but
leading counsel put the salient points of his report to Dr Arnold, who broadly
agreed with them. The main point was that the place where the spent cartridges
were found was consistent with Mr Martin having been near the opening
between the breakfast room and the hall when he fired the three shots. A scenario
from Dr Renshaw's report was put to Dr Arnold by leading counsel for Mr Martin
as follows:-
"Mr
Martin was standing just inside the breakfast room, close to the opening to
the hall, and Mr Fearon shone the torch into his face. Mr Martin aimed
and fired the shotgun below the torch and the discharge struck Mr Barras in
the back. Mr Fearon and Mr Barras moved towards the window side of the room
from the position close to the opening the hall and the breakfast room. Mr
Martin fired a further two shots aiming in the downward direction. The first
of the shots struck Mr Fearon causing a major wound to his left leg. The dispersed
shot from this wound struck Mr Barras on the inner aspect of his right thigh
and the wall beneath the window. The second struck Mr Barras in the outer
aspect of his right leg, and the pellets ricocheting from the wound struck
Mr Fearon in the right thigh and also the door to the left of the window.
In the above scenario it would not have been possible for Mr Martin to have
caused the observed injuries and damage if he had fired the gun from a position
on the stairs."
Dr
Arnold agreed that this scenario and the positions suggested would accord
with the injuries and the damage. It was further put to him that it was difficult
to say that the shots had come from the stairs and he responded: -
"Well,
two couldn't have been, and you have three cartridge cases close together,
with the implication being that they were fired close together."
- It should be
noted that in his report Dr Renshaw stressed that this was only one of a number
of possible scenarios which fitted the available evidence. He put forward
a total of six, depending largely on the number of shots fired; none of them
placed Mr Martin anywhere on the stairs. However, Dr Renshaw always accepted
that the first shot, the fatal shot, could have been fired from the staircase.
- Dr Renshaw,
in the further evidence that he gave to this court, said that if the person
firing was standing on the bottom surviving tread of the stairs the gap through
which the shot would have to pass was about ten inches wide. At that range
the spread of shot from the muzzle of the gun would be about five inches.
If the firer moved back to the halfway point on the stairs the gap would reduce
to about seven and one half inches and the spread of shot would be slightly
greater. No pellet damage was found on the wall either side of the opening.
Another firearms expert called to give evidence on the appeal, Major Mead,
said that the presence of a light in the breakfast room made it possible to
aim carefully at the gap, but such a shot would have had to have been very
accurately aimed (or very lucky) if it went through the gap. If the light
was blinding Mr Martin, as he suggests, then the shot would have to have been
even luckier.
- In his evidence
to this court, Dr Renshaw insisted that in consultation with the defence team
he had always made it plain that, on the basis purely of the available line
of sight, the first shot (which it is now accepted must have been the fatal
shot) could have been fired from the stairs. The basis for his opinion that
it had not been fired from the stairs was one of range, based on Fearon's
evidence as to where he and Barras were when the first shot was fired. To
put the matter another way, if the fatal shot was fired from the stairs, Barras
would have had to have been either in the hallway or at best in the doorway
to the breakfast room when he was hit. This evidence could have been elicited
at the trial. The fact that it was not elicited was the decision of the defence
lawyers who were acting on behalf of Mr Martin at the trial.
- The other forensic
evidence presented to this court was that of Dr Lloyd, a forensic scientist
expert in the examination and evaluation of chemical and physical trace evidence,
including firearms' discharge residue evidence. The evidence available at
trial was that swabs had been taken by a scenes of crime officer from the
staircase wall, the banister handrail and the newel post of the stairs from
positions where firearms residue might have been expected to be present if
Mr Martin's account was correct. A single particle of primer residue was found
in the swab from the wall which both the Crown expert (Mr Blunt) and Dr Renshaw
considered to be of no evidential value. Dr Lloyd, who was instructed by the
defence after trial, decided to re-examine the swabs on updated and more sensitive
instrumentation at the Forensic Science Service Metropolitan Laboratory and,
at the same time, to analyse samples taken from the three relevant cartridge
cases. Five further indicative particles were found on the banister handrail
and newel post and they were found to correspond in composition to the primer
particles present in cartridges JE/6 and JE/7. This evidence would support
a suggestion that the source of these particles was cartridge case JE/6. While
he accepted that there were other possible explanations, his view, now shared
by Mr Blunt, is that "the presence of five primer residue particles on the
banister and banister post lends some support to the contention that a shotgun
may have been fired from the stairway area".
THE
SUMMING UP
- No criticism
is made of the learned judge's directions on the law of self-defence. When
dealing with forensic evidence, the judge reminded the jury, in our view correctly,
that the shots that had struck the wall and the door on the far side of the
breakfast room from the stairs could not have been fired from the stairs as
these two areas of damage were out of the line of sight. He also reminded
the jury of Dr Arnold's evidence about the distance that there appeared to
have been from the muzzle of the gun to the point of impact on the injured
people and pointed out that those measurements, if correct, were indicative
that the shots were fired from a point "not as far away as the staircase".
THE
APPEAL
GROUNDS
1 AND 2
- Ground 1.
The preparation and presentation of the defence case denied Mr Martin
a fair trial.
- Ground 2.
There is compelling fresh evidence to support self-defence.
- These two grounds
of appeal overlap to a significant degree, and it is convenient to examine
them together.
- The essential
thrust of Mr Wolkind's argument is that in order to achieve the maximum support
for Mr Martin's defence of self-defence, and to defeat the prosecution's suggestion
that he was already downstairs lying in wait for the two burglars, it was
crucial to establish if at all possible that Mr Martin fired the shots, or
at least the first shot, from a position on the stairs. But while Mr Martin
gave evidence to that effect, and maintained his position throughout cross-examination,
it is complained that leading counsel failed to challenge Fearon about his
evidence as to where Martin was when he saw him in the flashes from the gun,
and in particular failed to cross-examine upon the version he had given in
his interviews and witness statements given to the police before he revisited
the farm. A further complaint is that leading counsel effectively put to Dr
Arnold Dr Renshaw's first scenario, which placed Mr Martin just inside the
breakfast room when he fired, as being the effect of the appellant's expert
evidence, and did not make it clear that it was Dr Renshaw's view (as
indeed it was Dr Arnold's) that it was physically possible for the first shot
to have been fired into the breakfast room from a position on the stairs.
Indeed, Mr Wolkind suggests that Mr Martin's defence team simply misunderstood
the effect of their own scientific evidence.
- We have closely
examined the contents of the various experts' reports and the transcripts
of the evidence by those experts at trial and, this last suggestion cannot
be justified. It was always plain that Dr Renshaw and Dr Arnold were agreeing
that the impossibility of shots from the stairs into the breakfast room only
applied to the second and third shots and not the first. That this position
was clearly understood by everybody at trial seems to us to be established.
- Mr Wolkind suggests
that it should have been well within the powers of experienced leading counsel
to cross-examine Fearon into changing his mind as to where Barras was at the
moment he was fatally shot; we accept this is possible, but such cross-examination
could have been damaging to Mr Martin's case and such evidence as there was
tended to suggest that Fearon was right.
- Criticism about
the presentation of the defence generally ignores what was plainly a very
difficult dilemma which faced the defence team. Mr Martin was asserting
that he had fired all shots from the stairs and had never descended to the
ground floor at all. The expert evidence was as one in concluding that that
account was untrue. If counsel, in presenting his client's case had emulated
Mr Martin in sticking doggedly to that account, there was the high probability
that the jury would not accept that Mr Martin had fired the first shot from
the stairs in self defence, since after doing so, he would have had to climb
over the gap at the bottom of the stairs, moved into the breakfast room, reloaded
and fired twice more. Such a scenario, with its implication of pursuit of
the burglars, would have been destructive of the defence of self-defence,
and highly suggestive that Mr Martin was bent on revenge. Accordingly, it
seems to us, counsel was entirely justified in seeking to gloss over the difficulties
caused by his client's own evidence and to accept, as the prosecution were
prepared to do, that the indications were that all three shots had been fired
from the ground floor. Such an approach would eliminate the element of pursuit,
and so support the defence of self defence.
- This is precisely
the explanation given by junior counsel for the approach adopted by the defence
at the trial. The leading counsel for the defence in his letter to the court
does not make the position as clear, but once it is appreciated that he was
referring to three shots and not a single shot, it is apparent that this must
also be his explanation.
- Dr Renshaw in
his statement dated 28 of August 2001 refers to the fact that he had three
conferences prior to the trial when Mr Martin was present. He states that
it was common ground that all three shots could not have been fired from the
stairs (although one shot could have been) and he explained this to Mr Martin
but although Mr Martin acknowledged what he said to him he continued to say
that, as far as he was concerned, he was on the stairs for all shots.
- It is clear,
and the contrary was not argued on this appeal, that Mr Martin was aware that
the strategy which would be adopted at the trial by the defence team was that,
while he was under the impression he was on the stairs when the shots were
fired it was accepted this could not be the case. It is plain that Mr Martin
had been fully consulted about the matter, and was aware of the difficulties
presented by the forensic evidence.
- In this situation
the fresh forensic evidence is not strictly admissible on this appeal. The
other forensic expert evidence merely supports evidence which Dr Renshaw
could have given at the trial which the defence decided not to adduce. It
is clear on the authorities that Mr Martin is not entitled now to resile
from the agreed position for the purpose of his appeal.
- The legal position
is made clear by the case of Ullah [2000] 1 C.A.R. 351. In that case
the appellant was charged with an indecent assault upon a female. During the
course of the trial, after the complainant had given evidence, tape recordings
were taken of telephone conversations between herself and other persons. Transcripts
of the recordings were made available to defence counsel, but he did not seek
to make any use of them at trial. The appellant was convicted, and it was
submitted on appeal that the transcripts ought to have been brought to the
attention of the jury because they showed that the complainant was trying
to suborn other prosecution witnesses who had yet to give evidence, and if
the jury had known of these conversations their verdict might well have been
different. In allowing the appeal this court held that although the ultimate
issue for the Court of Appeal was whether a conviction was safe, ineptitude
by counsel was a necessary prerequisite to any challenge to the safety of
a conviction based on counsel's conduct. The lack of safety in a conviction
could not be based on a decision by counsel merely because other counsel might
not have made the same decision. Only significant fault could found a challenge
to the safety of a jury's verdict. In the case under appeal the failure to
use the tapes was a matter of very serious misjudgement.
- At page 357,
the Vice President (Rose, LJ) referred with approval to a passage in the judgment
of Rougier, J. in Clinton [1993] C.A.R. 320 at 326 where he said referring
to the earlier authorities of Gautam [1988] C.L.R. log and Wellings
[Dec 20, 1991] :-
"The
court was rightly concerned to emphasise that where counsel had made decisions
in good faith after proper consideration of the competing arguments and where
appropriate after due discussion with his client such decisions could not
possibly be said to render a subsequent verdict unsafe or unsatisfactory....
conversely and, we stress, exceptionally where it is show that the decision
was taken either in defiance of or without proper instructions, or when all
the promptings of reason and good sense pointed the other way, it may be open
to an appellate court to set aside the verdict by reason of the terms of section
2 (1)(a) of the Act."
- The Vice President
also, at page 358 referred to the observations of Beldam, LJ in Ram
(The Times, Dec 7 1995) where it was observed:-
"The
court could not countenance a case in which the defendant was serving a prison
sentence for no other reason than a mistake on counsel's part, but equally,
where counsel's judgment had been reasonable, there was a strong public interest
that the legal process should not be indefinitely prolonged on the ground,
for example that a defendant's case advanced within a different framework
might have stood a greater chance of success."
- Having considered
the authorities, the Vice President concluded:-
"For
present purposes, it seems to this court that whatever the precise language
which is used to describe it, Mr Cowan is correct in saying that it is
only significant fault on the part of trial counsel, or indeed solicitors,
which confound a challenge to the safety of a jury's verdict. It may be, although
we express no final and concluded view on this aspect of the case, that it
is a proper and convenient approach a Wednesbury test to the decision
which is contained, i.e. was it one that no reasonable counsel or solicitor
could have reached?"
- Mr Wolkind referred
us to a very recent decision of the Privy Council in Boodram v The State
[10 April 2001]. That was a case in which counsel appearing for a defendant
on a charge of murder was apparently unaware of the fact that he was engaged
in a retrial until nearly the end of the proceedings. When he became aware
of this he did not try to obtain any transcripts of the first trial in order
to assess what could be done to redress any prejudice or potential prejudice
to the defendant. Lord Steyn, who delivered the judgment of the Privy Council,
observed that it was the worst case of the failure of counsel to carry out
his duties in a criminal case that their Lordships had come across. His remark
that general principle requires the court to focus on the impact of the faulty
conduct must be understood in this context. There may be cases where misconduct
has become so extreme as to result in a denial of due process, and the Privy
Council considered that was the situation that applied in that case. Their
Lordships were not indicating that where a decision has been made not to rely
on evidence for good reason at the trial, it is possible to adopt the opposite
tactics on appeal and then suggest that the conviction is unsafe.
- In the present
case, for the reasons that have already been analysed, we consider that defence
counsel had an exceptionally difficult line to tread. We find it quite impossible
to say that the tactics that were adopted by leading counsel on behalf of
Mr Martin at the trial were inappropriate. On the contrary in the circumstances
they were fully justified.
- However even
if we cast aside questions as to the admissibility of the fresh evidence we
are satisfied that the additional evidence of Dr Renshaw, Dr Lloyd and
Major Mead would not have affected the outcome in the circumstances to which
we are referred. We accordingly, reject the first two grounds of appeal in
so far as they depend on the forensic scientific evidence and the default
of the defence team. The remaining issues turn almost exclusively on the new
psychiatric evidence relied on by Mr Martin.
PSYCHIATRIC
ISSUES
- Mr Martin's
original solicitors instructed a consultant psychiatrist, Professor Maden,
to examine and report on Mr Martin. Mr Wolkind has criticised the terms of
the instructions given by the original solicitors to Professor Maden. However,
Professor Maden produced a comprehensive report. Professor Maden found no
evidence that Mr Martin was then suffering from depression and no evidence
of mental illness. His opinion was that:
a) while,
Mr Martin would be regarded by many people as eccentric and a loner he did
not suffer from a personality disorder.
b) Mr
Martin described occasional periods of depression in the past, one of which
may have been severe enough to warrant a psychiatric diagnosis at the time,
but after such a long period with no contemporaneous accounts of the episode
it was impossible to be certain. If he was depressed then, he recovered without
treatment and there was no suggestion that he was depressed at the time of
the alleged offence.
c) Mr
Martin was not suffering from any form of mental disorder nor is there anything
to suggest that he was suffering from mental disorder at the time of the alleged
offence.
d) the
feelings which he describes when he realised that there were people in the
house are consistent with severe anxiety and may be considered a normal reaction
to grossly abnormal circumstances.
e) in
the absence of any form of psychiatric disorder Mr Martin did not have a medical
defence to the charges he faced. He was fit to plead and stand trial according
to the usual criteria.
- Given the terms
of that report from a distinguished Professor of Psychiatry, it is no surprise
that no attempt was made either to obtain further medical evidence or to advance
a defence of diminished responsibility. There was no evidential basis for
so doing. Accordingly no valid criticism can be made of the original defence
team for accepting and acting on Professor Maden's opinion which coincided
with the opinion of Mr Martin himself. This fact is emphasised by Mr Martin's
point blank refusal to co-operate with the psychiatrist instructed to prepare
a report for the Court. It should also be noted that having been fully advised,
Mr Martin instructed his lawyers that provocation should not be advanced as
an alternative defence to the murder charge.
- After Mr Martin's
trial and conviction the new defence team instructed another distinguished
psychiatrist, Dr Joseph, to see Mr Martin and prepare a report. He conducted
two lengthy interviews with Mr Martin. He found that Mr Martin suffers from,
and was suffering from at the time of the offence, a longstanding paranoid
personality disorder which can be classified as an abnormality of the mind
arising from inherent causes within the terms of section 2 of the Homicide
Act 1957. It was and remains the opinion of Dr Joseph that if Mr Martin intended
to kill or to cause grievous bodily harm when he actually killed Barras, then
his mental responsibility was substantially diminished.
- Dr Joseph also
found that Mr Martin had suffered from recurrent bouts of depression throughout
his adult life and was suffering from depression at the time of the killing.
This condition was a disease of the mind which exacerbated his paranoid personality
disorder.
- The Defence
also instructed Miss Craissati a chartered forensic and clinical psychologist
to examine Mr Martin. Her findings mirrored those of Dr Joseph.
- The Prosecution
responded to Dr Joseph's report by instructing Dr Mackeith to report
on Mr Martin and by commissioning a further report from Professor Maden. Professor
Maden maintained the opinion expressed in his first report. Dr Mackeith found
no sufficient evidence to support a diagnosis of paranoid personality disorder
nor any evidence of depressive illness. He did find that Mr Martin suffered
from psychological problems.
- We heard oral
evidence from each of these distinguished experts who confirmed the opinions
set out in their reports, summarised above. It is unnecessary for the purposes
of this judgment to go into further detail of their evidence. This court is
not required to choose between their respective opinions on the issue of diminished
responsibility. The question is whether the evidence of Dr Joseph and Miss
Craissati is credible. Plainly it is. The Crown do not seek to argue otherwise.
Their evidence was not available at trial. There is a reasonable explanation
for it not being called, namely the negative terms of Professor Maden's report.
Accordingly, Mr Martin is entitled to rely on the evidence of Dr Joseph
and Miss Craissati.
- Dr Joseph made
two further findings which are said to be significant. Under the heading of
self-defence, Dr Joseph reported:
a) Taking
into account Mr Martin's mental characteristics at the time of the killing
Mr Martin would have perceived a much greater danger to his physical safety
than the average person. Dr Joseph considered that Mr Martin honestly
thought that he was in an extremely perilous situation and that he needed
to take immediate defensive action to counter the attack he was under.
b) It
is well recognised that at times of extreme emotional arousal, similar to
that described by Mr Martin prior to the killing, memory can be impaired.
Mr Martin was suffering from depression as well as being in a state of extreme
emotional arousal at the time of the killing. He therefore had those characteristics
which are most closely associated with amnesia. Dr Joseph, because of this,
believed Mr Martin may have suffered from a genuine period of amnesia when
he was standing on the stairs and he may have walked further down the stairs
without being aware of doing so.
- Mr Wolkind argues
that the evidence of Dr Joseph and Miss Caisatti establishes that Mr Martin's
convictions are unsafe. The first hurdle he has to surmount is that the evidence
was relevant and would have been admissible at the trial. This is plainly
expert opinion evidence. Whether such evidence is admissible depends upon
the purpose for which it is being relied upon. In some situations and for
some purposes it will be relevant and admissible, in others it will not. Here,
Mr Wolkind relied upon his medical evidence for different purposes:
a
) to establish that the breaking into his house would be perceived by Mr Martin
as being a greater threat to his safety then it would in the case of a normal
person. If the jury accepted the expert evidence as to this, this would have
made the jury more willing to accept Mr Martin's evidence. It could also have
influenced the jury's decision as to whether Mr Martin was acting reasonably
in firing the gun as he did;
b) to establish that Mr Martin may have suffered from amnesia as to what
happened and this could have explained why his evidence was not accurate;
c) to
establish that Mr Martin at the time when he fired the shot which was to prove
fatal was suffering from diminished responsibility.
- In the case
of Turner 1975 Q.B.834 Lawton LJ described the purposes for which expert
evidence of this character could properly be deployed in terms which have
subsequently frequently been followed. He said;
"The
first question on both these issues is whether the psychiatrist's opinion
was relevant. A man's personality and mental make-up do have a bearing upon
his conduct. A quick-tempered man will react more aggressively to an unpleasing
situation than a placid one. Anyone having a florid imagination or a tendency
to exaggerate is less likely to be a reliable witness than one who is precise
and careful. These are matters of ordinary human experience. Opinions from
knowledgeable persons about a man's personality and make-up play a part in
many human judgments. In our judgment, the psychiatrist's opinion was relevant.
Relevance does not result in the evidence being admissible: it is a condition
precedent to admissibility. Our law excludes evidence of many matters which
in life outside the Courts sensible people take into consideration when making
decisions. Two broad heads of exclusion are hearsay and opinion......the psychiatrist's
report contained a lot of hearsay which is 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.......... 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 and 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 judgement 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 does that of the jurors themselves; but there
is a danger they may think it does."
- While this formulation
has been accepted both by the Courts and by academics, (see Cross and Tapper
on Evidence.9th Ed.), it is important to note that the case of
Turner involved the defence of provocation and not self-defence. Provocation
reduces murder to manslaughter; unlike self-defence it does not result in
a defendant being acquitted.
- Mr Wolkind relied
of the recent decision of the House of Lords in R v Smith [2001] 1
C.A.R. 31. This was also a provocation case that Mr Wolkind contended
could be applied to the similar issues which arise when a defendant relies
on self-defence. In that case Smith was relying upon evidence that he suffered
from clinical depression. There was no dispute that the evidence was admissible
and relevant on the issue as to whether he was provoked, the subjective issue.
The problem was as to whether the evidence was admissible as being relevant
on the objective issue of loss of self-control. As to this the majority of
their Lordships came to the conclusion that the jury were entitled to take
into account some characteristic, whether temporary or permanent, which affected
the degree of control which society could reasonably expect of a defendant
and which it would be unjust not to take into account.
- Is the same
approach appropriate in the case of self-defence? There are policy reasons
for distinguishing provocation from self-defence. Provocation only applies
to murder but self-defence applies to all assaults. In addition, provocation
does not provide a complete defence; it only reduces the offence from murder
to manslaughter. There is also the undoubted fact that self defence is raised
in great many cases resulting from minor assaults and it would be wholly disproportionate
to encourage medical disputes in cases of that sort. Lord Hobhouse in his
dissenting speech in Smith recognised that in relation to self-defence
too generous an approach as to what is reasonable could result in an "exorbitant
defence" (p. 93 para 186). Lord Hoffman also appeared conscious of this. As
a matter of principle we would reject the suggestion that the approach of
the majority in Smith in relation to provocation should be applied directly
to the different issue of self-defence.
- We would accept
that the jury are entitled to take into account in relation to self-defence
the physical characteristics of the defendant. However, we would not agree
that it is appropriate, except in exceptional circumstances which would make
the evidence especially probative, in deciding whether excessive force has
been used to take into account whether the defendant is suffering from some
psychiatric condition.
- The only other
issue, as to which the medical evidence could possibly be relevant, so far
as self-defence is concerned, is as to what Mr Martin believed the situation
to be when he fired the shots. However he himself gave evidence as to this
and it was for the jury decide the extent to which they could act on his evidence.
- Dr Joseph's
diagnosis was based almost entirely upon the history given to him by Mr Martin.
It is apparent that Dr Joseph accepted that Mr Martin was a truthful
witness. He said so in terms:
"I
believe he honestly thought that he was in an extremely perilous situation
and that he needed to take immediate defensive action to counter the attack
he was under."
- However, this
was the very issue which the jury had to decide and Dr Joseph's evidence
that he thought Mr Martin's account was honest would have been irrelevant
at the trial in relation to self-defence.
- It is plain
that whilst eccentricity and extremes of eccentricity are likely to be within
the experience of a judge or jury a specific diagnosis of paranoid personality
disorder and the possible consequences thereof is scientific information which
is likely to be outside that range. But in this case the distinction between
the doctors is only one of degree since Professor Maden accepts Mr Martin
feelings were consistent with severe anxiety although he would not describe
this as a paranoid personality disorder. In this case, as will be the position
in most cases where self-defence is raised, it is what the defendant believed
was his situation which is important and not the scientific jargon which is
most appropriate to describe his mental state. In our judgment, if the medical
issues had been deployed at the trial, far from assisting the jury it would
have tended to confuse them and would have distracted them from their task.
- While we recognise
Dr Joseph's evidence could be said to fall within the admissibility test set
out by Lawton LJ in Turner above on the issue of self defence in this
case we do not consider it would have advanced the defence of self defence.
While it is true that the jury were unaware of Dr Joseph's diagnosis
that Mr Martin suffered from a paranoid personality disorder and so consequently
might have perceived a greater danger to his physical safety than an average
person in his situation, they did have the evidence of Mr Martin himself (on
which Dr Joseph based his diagnosis) including that Mr Martin was terrified
for his life. They knew that Mr Martin was a very eccentric man indeed and
that he was obsessed with the security of his home. A large part of the summing
up was spent dealing with this evidence with the judge making clear the undoubted
relevance of what Mr Martin believed the situation to be. The Jury could have
been in no doubt but that their judgment of Mr Martin's actions had to
be made by placing themselves in Mr Martin's shoes. In our judgment had
that part of Dr Joseph's opinion on this aspect of the case been before the
jury it would not have affected their decision and its omission does not render
his conviction unsafe.
- Mr Wolkind also
argues that if the jury had been aware of Dr Joseph's opinion as to the possibility
of Mr Martin's suffering from amnesia they may have considered that this explained
his failure to recall ever leaving the stairs and they might well have affected
their approach to Mr Martin's credibility. The Crown suggested to Mr
Martin in cross-examination that he had been deliberately lying when he told
the police that he had fired all the shots from the stairs. However, Dr Joseph
emphasised in evidence that he was not saying that Mr Martin had suffered
from a period of amnesia, only that it was a possibility. That possibility
has to be seen in context. Mr Martin's account was that he fired all the shots
from the stairs. That is what he told the police. That is what he told his
solicitor and counsel. He confirmed that account to the firearms expert, Dr Renshaw.
At his trial Mr Martin was questioned about this aspect of his account and
he adhered to what he said previously. All that Mr Martin claimed not to remember
was the number of shots he fired. As the case proceeded on the basis of the
three shots he undoubtedly did fire, the question of amnesia is of no significance.
- For these reasons
the fresh medical evidence has no bearing on the jury's rejection of Mr Martin's
contention that he was entitled to be acquitted on the grounds that he was
acting in self-defence. The position as to the fresh evidence relating to
diminished responsibility is different. Here the evidence is admissible and
relevant. The jury did not have the opportunity of considering this issue.
Although the issue was never raised at the trial this was because the evidence
was not then available to Mr Martin. Mr Martin is entitled to rely on the
evidence for the purposes of his appeal. (R v Weekes [1999] Crim. LR907)
The conviction for murder must therefore be quashed.
- It is also contended
that the judge having given a perfectly satisfactory direction as to the relevance
of Mr Martin's good character the judge undermined that direction because
he made a remark during his summing up debunking the reliance placed by the
defence on the fact that Mr Martin was kind to children. There is nothing
in this contention and we do not give leave in connection with the fifth ground
of appeal.
- The final ground
of appeal with which we have to deal is ground C of the original notice of
appeal. Mr Wolkind did not advance any oral argument in support of this ground
but left it to speak for itself. The complaint in this ground is that while
the judge gave the jury written direction as to the offence of wounding with
intent he never provided any written direction for the jury as to the alternative
offence of unlawful wounding contrary to section 20 of the Offences Against
the Person Act 1861.
- This failure,
if it was a failure which we doubt, is of no significance since if the jury
rejected the defence of self-defence, a verdict of wounding with intent was
inevitable. We therefore reject this ground of appeal.
- Having dismissed
Mr Martin's other grounds of appeal, the question arises as to whether we
should order a fresh trial on the issue of diminished responsibility. We have
no doubt that we should not do so. Section 3 of the Criminal Appeal Act 1968
allows us to substitute a conviction of the alternative offence of guilty
of manslaughter by reason of diminished responsibility. And we are entitled
to do this since it appears to us that "the jury must have been satisfied
of facts which proved him guilty of the other offence", namely manslaughter
by reason of diminished responsibility. We therefore so find Mr Martin guilty
of manslaughter.
SENTENCE
- As the conflict
as to the medical evidence has not been resolved by a decision of the jury,
in approaching the question of sentence we have to assume the opinion expressed
by Dr Joseph supported by Miss Craissati is correct. It however remains the
position that Mr Martin used a firearm which he knew he was not entitled to
have in a manner which was wholly unjustified. There can be no excuse for
this though we treat his responsibility as being reduced for the reasons explained
by Dr Joseph.
- There is also
no doubt that the two men who broke into Mr Martin's house were intent on
committing burglary. Mr Martin was entitled to use reasonable force to protect
himself and his home, but the jury were surely correct in coming to their
judgment that Mr Martin was not acting reasonably in shooting one of the intruders,
who happened to be 16, dead and seriously injuring the other.
- Any shortcomings
on the part of the police could not justify Mr Martin taking the law into
his own hands. We understand how frustrated Mr Martin may have been and
in deciding what sentence is appropriate we take into account not only the
evidence of his medical witnesses, but also the conduct to which he had been
subjected. We also take into account that we must make it clear that an extremely
dangerous weapon cannot be used in the manner in which it was used by Mr Martin
that night.
- The conclusion
to which we have come is that the minimum sentences which we feel it would
be proper to impose are; for manslaughter five years imprisonment; for wounding
with intent the sentence shall be reduced to three years imprisonment and
the sentence of 12 months imprisonment for the possession of the uncertified
shot gun should remain unaltered. All the sentences shall be concurrent. In
view of the time Mr Martin has already spent in custody within about a year
Mr Martin will be eligible for consideration for parole.