(back to preceding text)

    53.  Hayne J said at page 431:

"Nor does the conclusion which I have reached depend upon some judicial assessment of what was acknowledged to be a strong case against the appellant. It is a conclusion which depends entirely upon giving due weight to the verdict of the jury in light of what they were told by the judge and assuming (there being no basis for suggesting otherwise) that they did their duty conscientiously.

The trial to which the appellant was entitled was a trial according to law. There were two questions for the Court of Appeal. First, was there a trial according to law (and all agreed that there was not). Second, and no less important, was the question whether a substantial miscarriage of justice had actually occurred. That second question is not concluded by pointing to the fact that there was a misdirection and that there was, therefore, not a trial according to law. The existence of the proviso denies that the fact of misdirection will, in every case, require an order for retrial. Nor can this second question be answered by making an assumption that the jury might have chosen to disregard what they were told by the judge. Such an assumption is unwarranted. It is an assumption which suggests that emotion (whether induced by the eloquence of counsel or otherwise) might have supplanted the collective common sense and careful reasoning that jurors bring to bear upon a difficult task. It is an assumption which, if effect is given to it, turns the judge's charge to a jury into a ritual incantation which appellate courts must examine for formal correctness but which appellate courts are free (if not bound) to assume a jury may have disregarded."

    54.  Callinan J in giving his reasons for allowing the appeal expressed a view at page 441 which I think does not involve acceptance that a jury may fail to carry out their duty:

"The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice."

    55.  In the later case of Gillard v The Queen (2003) 219 CLR 1, 41 and 42, Hayne J described the effect of the decision of the majority in Gilbert as follows:

"In Gilbert, a majority of the Court concluded that if manslaughter should have been, but was not, left to a jury as an available verdict on the appellant's trial for murder, the verdict of guilty of murder did not preclude the possibility that the jury may have failed to apply the instructions they were given. No party in this appeal sought to reopen the decision in Gilbert. It follows from what was decided in Gilbert that, in deciding here whether no substantial miscarriage of justice has actually occurred and thus, whether the proviso to s353(1) of the Criminal Law Consolidation Act applies, account may not be taken of the findings implicit in the jury's verdicts at the appellant's trial. It must be assumed that the jury may have chosen to disregard the instructions they were given, and convict the appellant of murder and attempted murder, rather than return verdicts of not guilty. Once it is accepted that the jury may have disregarded the instructions they were given, it is not permissible to reason, as the respondent submitted, from the fact that the jury returned verdicts of guilty on all three counts to the conclusion that the jury must therefore be taken to have applied the trial judge's instructions. Once it is said, as it was in Gilbert, that the jury may have disregarded the instructions they were given, it cannot be said that some levels of disobedience may be less probable than others."

Therefore the view taken by the High Court of Australia is that if, on a trial for murder, manslaughter was not left when it should have been, it must be assumed by the appellate court (contrary to Lord Ackner's requirement that the appellate court must be satisfied) that the jury may have chosen to disregard the instructions they were given.

    56.  The second line of cases does not follow the Maxwell approach but takes the more direct view that if a lesser alternative verdict could reasonably have been come to on the evidence, justice to the defendant requires that the jury should have been given the opportunity to return that verdict and the conviction must be quashed, and does not take into account the question whether the jury may have convicted out of a reluctance to see the defendant get clean away. In delivering the judgment of the Privy Council in Bullard v The Queen [1957] AC 635, 644 Lord Tucker said:

"Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached."

    57.  In the High Court of Australia in Pemble v The Queen (1971) 124 CLR 107, 117 Barwick CJ said:

"Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part."

    58.  In R v Jackson [1993] 4 SCR 573, 593 in delivering the judgment of the Supreme Court of Canada McLachlin J said:

"It is true that the trial judge charged the jury clearly and correctly on the mental state required to find Davy guilty of murder. It is also true that the jury found Davy guilty of murder. Nevertheless, I agree with the Court of Appeal that one cannot be satisfied the verdict is just, given the failure of the trial judge to set out the basis for convicting Davy of manslaughter under ss. 21(1) and 21(2) [of the Criminal Code] and the absence of any instruction that a party may be guilty of manslaughter even though the perpetrator is guilty of murder."

    59.  In Von Starck Lord Clyde made no reference to the Maxwell approach and said at page 1276 that it was the duty of the judge "to secure that a just result is obtained in the whole circumstances disclosed in the evidence." In the context of the importance of ensuring a just result in the whole circumstances disclosed in the evidence, I consider, with respect, that there is much force in the perceptive observation of Callinan J in Gilbert v The Queen at page 441 which I have already cited that:

"It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered…"

It is also relevant to observe that in addition to ensuring fairness to the defendant, the leaving of a lesser alternative verdict to the jury is in the public interest. As Mustill L J said in R v Fairbanks [1986] 1WLR 1202, 1206:

"It must be remembered that justice serves the interests of the public as well as those of the defendant, and if evidence is such that he ought at least to be convicted of the lesser offence, it would be wrong for him to be acquitted altogether merely because the jury cannot be sure that he was guilty of the greater."

    60.  I was a member of the Board which followed the Maxwell approach in Hunter and Moodie v The Queen, but I now consider that that approach is an unsatisfactory one and should no longer be taken. It requires the appellate court, without having material before it to enable a proper assessment to be made, to attempt to make an assessment whether a jury has returned a verdict of guilty, not on a proper and fair weighing of the evidence in the light of the judge's directions as to the law, but from reluctance to see a defendant, who has behaved disgracefully, get clean away. In reality, it appears to oblige the appellate court to engage in speculation as to the factors which may have influenced the jury's decision. And it is relevant to observe that in following a course somewhat similar to the Maxwell approach the High Court of Australia has arrived at the point at which, if the judge has erred in not leaving an alternative verdict of manslaughter to the jury, it is to be assumed by the appellate court that the jury may have chosen to convict of murder in disregard of the instructions they were given.

    61.  Therefore I consider that the House should follow the reasoning in the second line of cases and hold that, save in exceptional circumstances, an appellate court should quash a conviction, whether for murder or for a lesser offence, as constituting a serious miscarriage of justice where the judge has erred in failing to leave a lesser alternative verdict obviously raised by the evidence.

    62.  In conclusion I refer briefly to one further matter. The authorities make it clear that an alternative verdict should only be left if it is one to which "a jury could reasonably come" (per Lord Clyde in Von Starck at page 1275: see also Mustill LJ in Fairbanks page 1205, "unless the alternatives really arise on the issues as presented at the trial"). Therefore I am in full agreement with the test proposed by Lord Bingham in paragraph 23 of his speech that the alternative or alternatives "should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial." I also agree that the rule discussed by Lord Bingham should not be extended to summary proceedings.

    63.  Therefore for the reasons which I have given, and also for the reasons given by Lord Bingham and Lord Rodger of Earlsferry with which I agree, I would allow this appeal and make the order which Lord Bingham proposes.

LORD RODGER OF EARLSFERRY

My Lords,

    64.  In July 2003 the appellant, Graham James Coutts, was charged with the murder of Jane Katherine Longhurst earlier that year. After trial in the Crown Court at Lewes he was convicted of her murder and sentenced to life imprisonment with a recommendation that he serve a minimum of 30 years before being considered for release. He appealed to the Court of Appeal against his conviction, inter alia on the ground that the judge had wrongly failed to direct the jury that it was open to them to return an alternative verdict of manslaughter. The Court of Appeal dismissed his appeal against conviction, but allowed his appeal against sentence to the extent of substituting a minimum period of 25 years 2 months to be served by him before being considered for release.

    65.  The reason for the very long period to be served by the appellant before being considered for release becomes obvious when the nature of the murder of which the appellant was convicted is understood. The case for the Crown as presented to the jury was that he had murdered the deceased in order to obtain sexual stimulation and that, having strangled her with a pair of tights, he did indeed have some kind of sexual contact with her body. The prosecution led evidence, which was not disputed, that the appellant was in the habit of visiting various websites which related to sex and violence and which contained images under headings such as "asphyxiation and strangulation", "rape, torture and violent sex". In particular, the day before the deceased's death, he had logged on to a website "Death by asphyxia" for approximately an hour and three quarters.

    66.  The appellant did not dispute that the deceased had died in his flat, nor that, following her death, he had concealed her body in a storage unit, before eventually setting fire to it on an area of open land. His position at trial was that the deceased had died by accident when he and she had been engaged in consensual sexual activity. With her consent, when they were face to face on his bed, he had put a ligature, in the form of a pair of tights, round the deceased's neck. The sight of the ligature was intended to stimulate him sexually and the restriction of oxygen to the deceased's brain was intended to heighten her sexual pleasure. According to the appellant, when he was on his back and she was above him, he held the ends of the tights behind her neck with his left hand, while masturbating with his right hand. At some time before he ejaculated, he must have closed his eyes. When he opened them again, he was aware of the deceased lying over him and not moving. In fact, she was dead. He could not remember what had happened in the moments before her death. The appellant said that he had not pulled the ends of the ligature sufficiently strongly to cut off her blood supply and to kill her. Her death had just been an accident in the course of this consensual sexual activity.

    67.  There was evidence, led by the Crown but relied on by the defence, from two women with whom the appellant had had relationships, to the effect that they had sometimes engaged in consensual sexual activities with him which involved him putting some kind of pressure on their necks. Another woman spoke to having had a consensual sexual encounter with him in which he bound her wrists with masking tape.

    68.  Both counsel for the prosecution and counsel for the defence conducted the trial on the basis that the jury had to choose between these two starkly different versions of events, one involving a particularly horrendous murder, the other involving an accident in the course of a consensual sexual encounter. But after the evidence was over, and before speeches, in the absence of the jury the judge raised with counsel the possibility of an alternative verdict of manslaughter. On an indictment for murder a jury can, of course, return a verdict of manslaughter in an appropriate case: section 6(2) of the Criminal Law Act 1967. Prosecuting counsel, Mr Kelsey-Fry QC, immediately acknowledged that one could mount an argument in law to suggest that the defence account, even if accepted, might amount to manslaughter on the basis either of gross negligence or, arguably, of an unlawful and dangerous act. On either version there would be room, arguably, for an alternative verdict of manslaughter. The Crown's view, however, was that it would be quite unfair and quite wrong to allow for such a verdict in this case: "Having set the case out as a contest between deliberate killing and the defence version, if we failed to prove the deliberate killing, in our submission the defendant is entitled to a full acquittal." Under reference to the decision in Emmett [1999] EWCA 1710, the judge raised concerns which he had about that approach, but he eventually indicated that, if the Crown took the view that this was a case where, the Crown having opened the case in the way that it had, it would be unfair to proceed down an alternative, then it was not for the judge to enter into unfair approaches. Prosecuting counsel reiterated that, from the Crown's point of view, the case was about a deliberate and macabre murder: they had never advanced the case on the alternative basis and it would be wrong to do so now. Defence counsel readily agreed with the judge that he could not be expected to argue against that approach.

    69.  Subsequently, when the judge specifically asked defence counsel whether he was inviting him to put manslaughter on any basis to the jury, counsel said that he could provisionally answer the question, "No, I am not." He indicated that he had not had an opportunity to discuss the matter in detail with the appellant and asked to be allowed to raise it briefly the following morning if the position changed. Counsel did not subsequently raise the matter with the judge.

    70.  In a statement prepared for the purposes of his appeal to the Court of Appeal, the appellant said that the issue of manslaughter had been discussed in the preparation of the case, when he was advised that, if convicted of manslaughter, he would receive a lengthy sentence. He was also certain that he had discussed the matter further with defence counsel after the exchange in court. He recalled counsel saying "Do you want us to make representation, or do you want to roll the dice and be home with Lisa and the boys?" He had been told that he would receive a sentence of as long as 15 years if convicted of manslaughter. The appellant followed his counsel's advice and agreed that they should not ask for manslaughter to be left to the jury. Trial counsel accepted that the appellant's statement correctly reflected the gist of their conversation. It is therefore clear that the appellant took a tactical decision not to ask the judge to give the jury directions on manslaughter in the hope that, faced with a stark choice between murder and accident, the jury would acquit him and he would immediately be free to go home.

    71.  In the light of the submissions made to him by counsel, the judge did not give the jury any direction on manslaughter. His direction on the law was to this effect:

"As you know, of course, his defence is that this was an accident taking place during the course of consensual asphyxial sexual activities between himself and Jane, and therefore it follows that he is saying to you that he never had any intention to kill her or to cause her any really serious bodily harm. If her death was or may have been an accident, then, of course, he is not guilty of this allegation. The reason for that would be that you would not be satisfied that he intended to kill her or at least to cause her some really serious bodily harm. If, having considered all of the evidence in the case, you are sure that it was not an accident and that he did intend to kill her, or at least to cause her really serious bodily harm, then it would then follow that he is guilty of murder."

    72.  Despite the tactical decision which the appellant and his trial counsel took, not to ask the judge to direct the jury on manslaughter, he now contends that actually the judge was bound to give such a direction in the circumstances of this case and that his failure to do so amounted to a material misdirection in law. On behalf of the Crown Mr Kelsey-Fry contends that the judge was under no duty to give a direction on manslaughter but that, even if he was, the failure to do so did not make the jury's verdict unsafe since, in order to convict the appellant of murder, the jury must have been satisfied beyond a reasonable doubt that he had intended to kill the deceased or at least to cause her serious bodily harm.

    73.  My Lords, the inconsistency in the appellant's attitude at trial and on appeal is striking, not to say disturbing. But he is not the first defendant to have placed an appeal court in this predicament. In Dhillon [1997] 2 Cr App R 104, where the trial judge had consulted counsel and, in the light of their submissions, had not given a direction on provocation when he should have done, the Court of Appeal held that his failure to do so was an unfortunate material misdirection. Ward LJ aptly concluded, at p 114:

"The result, making some mockery of our hallowed adversarial procedure which strives to do justice to both sides, is that the appellant is able both to have his cake at trial and also to eat it on appeal."

In Cox [1995] 2 Cr App R 513, 518, Glidewell LJ had been forced to a similar conclusion where the judge had failed to leave the issue of provocation to the jury. In Gillard v The Queen (2003) 219 CLR 1, at trial counsel for the defendant had successfully resisted an attempt by the prosecution to persuade the judge to direct the jury that verdicts of manslaughter were available. The appellant had fully exploited the forensic advantages of the jury being presented with a straight choice between murder and nothing. But, in the event, the jury convicted him. He appealed on the ground that the judge should indeed have directed the jury that manslaughter verdicts were available. Kirby J commented, at p 17, para 41:

"Having secured, but lost, the advantages of the dichotomy which he urged at his trial, the appellant now wants another trial with a further chance to contest the indictment under new rules. It is easy to feel a sense of distaste about allowing such a course to succeed."

Nevertheless, his Honour came to the view that the failure to give a direction on manslaughter constituted a wrong decision on a question of law and that there would indeed have to be a new trial.

    74.  These authorities help to identify the attitude which an appeal court must adopt in a case such as this, despite any justifiable feeling of distaste for the appellant's approach. If the court concludes that there was a material misdirection which rendered the jury's verdict unsafe, then it must give effect to that conclusion and quash the conviction. An unsafe verdict cannot stand just because the appellant was partly to blame for its being unsafe.

    75.  At the hearing before the House Mr Fitzgerald QC, who did not appear in the trial, submitted on behalf of the appellant that a verdict of manslaughter would have been available on the basis of the defence version of events. So far as the Crown is concerned, as I have explained, when the trial judge raised the question of manslaughter, Mr Kelsey-Fry immediately acknowledged that, on the defence account, there would be room for an alternative verdict of manslaughter, on the basis that the victim's death had resulted either from gross negligence or, arguably, from an unlawful and dangerous act. Before the House he similarly acknowledged that a verdict of manslaughter would have been open on the defence version - though he submitted that the proper basis would have been gross negligence, rather than an unlawful and dangerous act. It is therefore common ground that, on the totality of the evidence, if directed on the law of manslaughter, the jury would have been entitled to find the appellant guilty of manslaughter. I agree with that view. In these circumstances, it is unnecessary to determine whether one, rather than the other, legal basis for such a verdict would have been the more appropriate.

    76.  The issue accordingly is whether, given that a verdict of manslaughter would have been available on the evidence before the jury, the trial judge should have directed the jury on manslaughter. Here the judge raised the issue with counsel and their common position was that he should not do so. While the judge was fully entitled to take account of counsel's attitude, ultimately any trial judge is responsible for ensuring a fair trial in which the defendant is convicted of a crime only if his guilt is proved according to law. That duty is not compromised or qualified by the strategy or tactics adopted by counsel on either side - although these may affect what the judge has to do in fulfilment of his duty.

    77.  Appeal courts have frequently had to consider whether on a murder indictment a trial judge needed to put the alternative verdict of manslaughter before the jury. In Mancini v DPP [1942] AC 1, 7 Viscount Simon LC said:

"Although the appellant's case at the trial was in substance that he had been compelled to use his weapon in necessary self-defence - a defence which, if it had been accepted by the jury, would have resulted in his complete acquittal - it was undoubtedly the duty of the judge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the evidence given, and which would reduce the crime from murder to manslaughter. The fact that a defending counsel does not stress an alternative case before the jury (which he may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from the duty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they should consider it…. Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence, even although counsel may not have raised some question himself."

Viscount Simon added, at p 8:

"The possibility of a verdict of manslaughter instead of murder only arises when the evidence given before the jury is such as might satisfy them as the judges of fact that the elements were present which would reduce the crime to manslaughter, or, at any rate, might induce a reasonable doubt whether this was, or was not, the case."

In Kwaku Mensah v The King [1946] AC 83, 91-92, the judge had failed to give a direction on provocation in a case where the issue properly arose. Delivering the judgment of the Privy Council, Lord Goddard said:

"But if on the whole of the evidence there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the judge must put that question to the jury. This was distinctly laid down in Rex v Hopper [1915] 2 KB 431, a case in some respects resembling the present, more especially in that the line of defence adopted was that the killing was accidental and no attempt had been made at the trial to rely on provocation. The ruling was expressly approved by the House of Lords in Mancini v Director of Public Prosecutions [1942] AC 1. The reason for the rule is that on an indictment for murder it is open to the jury to find a verdict of either murder or manslaughter, but the onus is always on the prosecution to prove that the offence amounts to murder if that verdict is sought. If on the whole of the evidence there is nothing which could entitle a jury to return the lesser verdict the judge is not bound to leave it to them to find murder or manslaughter. But if there is any such evidence then, whether the defence have relied on it or not, the judge must bring it to the attention of the jury, because if they accept it or are left in doubt about it the prosecution have not proved affirmatively a case of murder."

The Privy Council adopted and applied this statement of the law in DPP v Daley [1980] AC 237, 244.

    78.  In Von Starck v The Queen [2000] 1 WLR 1270 the appellant had been convicted of murdering a woman by stabbing her. On being arrested, he admitted killing her. In the course of the trial the Crown led evidence of that admission and of a statement in which the appellant said that he and the deceased woman had been taking drugs in his hotel room when he suddenly had a knife in his hand and, although he did not know exactly what had happened, he remembered seeing her on the ground and thinking she was dead. In an unsworn statement at his trial the appellant did not mention taking cocaine but said that he did not know what had happened. The judge withdrew the appellant's pre-trial statements from the consideration of the jury on the ground that they were inconsistent with what he had said at his trial. The Privy Council allowed his appeal and, by agreement, substituted a conviction of manslaughter. In the course of giving the judgment of the Board Lord Clyde said, at p 1275:

"The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them. If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognised in Xavier v The State (unreported), 17 December 1998; Appeal No 59 of 1997 a low one, and, as was also recognised in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury. For tactical reasons counsel for a defendant may not wish to enlarge upon, or even to mention, a possible conclusion which the jury would be entitled on the evidence to reach, in the fear that what he might see as a compromise conclusion would detract from a more stark choice between a conviction on a serious charge and an acquittal. But if there is evidence to support such a compromise verdict it is the duty of the judge to explain it to the jury and leave the choice to them. In Xavier v The State the defence at trial was one of alibi. But it was observed by Lord Lloyd of Berwick in that case that, 'If accident was open on the evidence, then the judge ought to have left the jury with the alternative of manslaughter.' In the present case the earlier statements together with their qualifications amply justified a conclusion of manslaughter and that alternative should have been left to the jury."