Title: IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
Author: rcars01
Last saved by: Andrew Mowbray
Company: Northern Ireland Court Service

Judgment: approved by the Court for handing down
(subject to editorial corrections)
Ref:	  CARC3271 

Delivered:	   9.3.01

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_____ 

THE QUEEN

v

TREVOR McCANDLESS
_____ 

CARSWELL LCJ

Introduction
This is an appeal against the conviction of the appellant at Ballymena Crown Court on 6 May 1999 of the murder of his wife Zara McCandless, after a trial before Girvan J and a jury.  Mrs McCandless was stabbed to death outside the matrimonial home at 5 Riversdale Crescent, Coleraine in the early hours of 14 May 1998.  It was not in dispute that it was the appellant who stabbed her; the defence raised was that of provocation, and the issue at trial turned on whether it had been sufficiently negatived.  The jury by its verdict found that it had, but the appellant appealed on two main grounds, the reception of evidence about his criminal record and the content of certain directions to the jury in the judge’s charge which the appellant claims were misdirections.  At the conclusion of the hearing we announced that the appeal would be allowed and a new trial ordered, and that we would give our reasons at a later date.  
The Factual Background
	In view of the fact that a new trial is to be held, I shall deal with the basic facts of the case as briefly as possible.  The matrimonial home of the appellant and his wife and three children was 5 Riversdale Crescent, Coleraine, but the spouses had been separated for a few weeks, following some difficulties in the marriage, and the appellant was staying with his mother.  He had been drinking during the afternoon and evening of 13 May 1999, and at some time in the early hours of 14 May he took his set of keys to 5 Riversdale Crescent and went to that house.  He let himself into the house and a confrontation with his wife ensued.  She telephoned the police at 4.30 am, asking them to come to the house and complaining that he had just tried to break in.  A row broke out between the appellant and his wife, the details and progress of which we shall not attempt to recount.  The end result of the encounter was that the appellant stabbed his wife some 33, or possibly 35 times.  When the police arrived she was lying on the front path, covered in blood and with her nightshirt pulled up above her waist.  There was no sign of life and she was pronounced dead by a doctor at 5.25 am.  Neighbours who saw or heard parts of the episode gave evidence about the attack.  One said that he stated to her “She pushed me over the edge”.  When the police arrived the appellant made remarks to the effect that he had “gone berserk” or “flipped”.   The appellant averred in his evidence at trial that she ran from the kitchen holding a knife and they had a struggle, but professed to remember nothing after that until some time later.  
Issues Arising in the Trial
(i)   Evidence of Provocation
Mr Kerr QC for the Crown did not attempt to argue that no question of provocation arose or that that defence should not be put to the jury.  The judge left the issues of provocation and diminished responsibility and in the light of the House of Lords’ decision in R v Acott [1997] 1 All ER 706 I think that he was correct to do so.
(ii)   Reference to the Appellant’s Criminal Record
	Dr Dermot Nugent, a consultant psychiatrist, was called on behalf of the appellant to give evidence as to his mental state, on the issue of diminished responsibility, in the course of which he gave as his diagnosis that the appellant was a paranoid personality, his condition being aggravated by marital difficulties, unemployment and the abuse of alcohol, and that he was emotionally unstable.  
	In cross-examination it was put to him that the appellant was simply a bad individual, who did not recognise the situation and was determined to change it in whatever way he could.  Dr Nugent replied that the main bad thing that the appellant had done was to murder his wife.  When counsel took him up on this, he said:
“The main bad thing was this offence, this is the only bad thing that I could find in the evidence or the evidence available to me otherwise he hasn’t been a bad person.”
  
Counsel then asked the judge, in the absence of the jury, to permit him to put to the witness that the appellant had in fact been convicted some twelve or thirteen years before of throwing a petrol bomb.  He wished to do so, not because the appellant put his character in issue or had himself done anything to throw away the shield against having previous convictions revealed.  He proposed rather to use the fact of the conviction to attack the credit of the witness, on the ground that he knew of it but misstated the position in a way which could mislead the jury. 
	After hearing argument the judge ruled that the matter could be put to Dr Nugent, notwithstanding that it meant that the jury would in the process hear of the conviction, which was now classed as a spent conviction.  He said that he had to exercise his discretion, 
“balancing the interests of justice as between both the defendant and the prosecution to ensure that there is a fair trial and to ensure that the jury are not misled in relation to the evidence.” 

Crown counsel then cross-examined the witness about his misstatement, for which he attempted to apologise, saying first that he had forgotten the conviction, then that he did not think at the time that it was relevant.
	In the course of his charge the judge reminded the jury of this evidence and told them that they could consider it for the purpose of assessing the reliability of Dr Nugent as an expert witness.  He warned them against holding the conviction against the appellant, saying:
“The actual offence on that occasion throws no light on his credibility as a witness in relation to this matter, or on his propensity to commit the offence causing his wife’s death, and it throws no light on his state of mind or intent.  You should, therefore, disregard completely the matter of his previous conviction.” 

(iii)   The Personal Characteristics of the Appellant
Before the judge commenced his charge to the jury he held a discussion with counsel about the issues with which he would deal.  The appellant’s counsel submitted, in reliance on the decision of the Court of Appeal in R v Smith [1998] 4 All ER 387, that he should direct them that the characteristics of the appellant, arising from the medical evidence, attributable to a reasonable man for the purposes of section 7(1) of the Criminal Justice Act (Northern Ireland) 1966, were relevant not only to the gravity of the provocation but to the standard of self-control to be expected of him.  Section 7(1) provides:
“     7.-(1)   Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or both together) to lose his self-control the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”

	It appears plainly from his discussion of the issue with the appellant’s counsel that the judge was unhappy with the decision of the Court of Appeal in R v Smith and regarded it as removing the objectivity of the test of the reasonable man to an undesirable degree.  He decided not to follow that decision when he came to direct the jury.  In directing them on the law of provocation he stated at page 9 of his charge:
“If you consider that the answer to the first question is yes, that is he did lose his self-control or he may have lost his self-control as a result of something said and/or done by his wife, you must then go on to consider a second question, and that is: Might the conduct of the deceased, which led to the defendant losing his self-control, have been such as to cause a reasonable and sober person of the defendant’s age and sex to do as he did?  ‘A reasonable person’ is simply a person who has the degree of self-control which is to be expected of the ordinary, sober citizen of the defendant’s age and sex, but in other respects sharing such of the defendant’s characteristics as you think would affect the gravity of the provocation offered to him.  When considering this question you must take into account that which was done and/or said according to the effect it would have had on a reasonable and sober person of the defendant’s age and sex as well as those matters which are relevant when you assess the gravity of the provocation on him.”

He returned to the issue later in the charge and said at pages 42-3:

“In looking at the effect of the provocation on the defendant, the second question is: Might that conduct have caused a reasonable person to do as the defendant did?  In determining that question you must take into account everything done and said according to the effect, in your opinion, it would have had on a reasonable man.  And in this context ‘a reasonable man’ is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused characteristics as you think would affect the gravity of the provocation to him.  The question is not merely whether such a person would in like circumstances be provoked to lose his self-control, but also whether he would react to the provocation as the accused did?

Now, drunkenness is not a relevant characteristic or factor and a person’s tendency to explosions of anger, temper or excitability  as a result of normal personality traits is not relevant.  If, however, you consider that the defendant was an individual suffering from an abnormality of mind, brought on by depression or a paranoid personality disorder, and if, assuming the defendant was sober, the deceased’s provocation would have been more grave and provocative to him because of that condition, in answering the question whether a reasonable person would have been caused to do as the defendant did, you must decide that by reference to that greater level of provocation.  On the issue of provocation I remind you that the Crown must disprove it beyond reasonable doubt and it is not on the defendant to prove it.”

Defence counsel requisitioned the judge to the effect that in the light of R v Smith the direction was incorrect, but the judge declined to amend his direction.

(iv)   Verdict of Manslaughter on Different Bases
In the discussion between counsel and the judge another issue was raised, how the judge should direct the jury when they could bring in a verdict of manslaughter on one or more of several bases, (a) that they did not find the requisite mens rea proved (b) that provocation had not been disproved (c) that diminished responsibility had been established.  Mr Donaldson submitted that they should be directed that it was open to them to agree upon a collective verdict of manslaughter, even if they varied between themselves on which basis they reduced the charge from murder, some doing so on the basis of lack of intention, others on that of provocation and others on that of diminished responsibility.
The judge did not accept this submission, for when he came to charge the jury on the point he said at pages 44-5:
“You may usefully look at the three issues of intention, diminished responsibility and provocation individually and together.  It might be logical to consider the question of intention first, for if you decide that in favour of the defence it really would mean that the defendant would not have had the intention to commit the act of murder, and you would acquit of murder and find him guilty of manslaughter.

If you’re satisfied that the intention has been established you must then go on to look at the issue of the diminished responsibility and provocation which I think should be looked at together and individually and, at the end of the day, you will then have to decide which you consider to be appropriate or, if neither is appropriate, you would make your verdict accordingly in relation to murder.

Now, at the end of the day, when you come back, if you find the defendant guilty of manslaughter, you will be asked whether it is on the grounds of lack of intention, diminished responsibility and/or provocation and you should be in a position to answer that question.”

He was requisitioned also on this issue, and in response he brought the jury back and gave them a further direction:
“If, having considered all the evidence, you consider that this is a case in which the defendant is guilty of manslaughter on the grounds of diminished responsibility and provocation, you may come to that conclusion.  You may come to the conclusion, on the review of the evidence, that it’s a case of diminished responsibility only, or you may come to the conclusion it’s the case of lack of intention, but it is open to you to come to the conclusion that it’s manslaughter on the grounds of diminished responsibility and provocation.  And when I ask you ultimately what your reasoning for your verdict of manslaughter is (if you decide on manslaughter) I’ll ask you on which of the grounds you come to, or whether you come to it on both grounds of diminished responsibility and provocation.  So I just wanted to make that clear to you, that it doesn’t all have to be packaged into one heading.  You’re entitled to look at the whole matter as a whole and, as I say, if you come to the conclusion it’s manslaughter on the grounds that it’s diminished responsibility and provocation, you’re free to come to that conclusion.”

Reference to the Appellant’s Criminal Record
Mr Donaldson QC for the appellant relied on the decision of the Court of Criminal Appeal in  R v Redd (1922) 17 Cr App R 36, in which the defendant was charged with housebreaking, stealing and receiving.  A witness for the defendant volunteered a statement that as far as he knew “he is all right”, whereupon prosecuting counsel asked him in cross-examination about the defendant’s previous convictions for offences of dishonesty.  The court held that the defendant was not endeavouring to establish a good character:
“Because a witness whom he called volunteered a statement, perhaps against his wish, about his character, it cannot be held that he was so endeavouring.” 

The conviction was accordingly quashed. 
	Both this case and that of R v Burke (1986) 82 Cr App R 156, also cited by Mr Donaldson, concerned the putting of questions to the defendant relating to his record, under the Criminal Evidence Act 1898, whose equivalent is section 1(f) of the Criminal Evidence Act (Northern Ireland) 1923.  In the present case the object of asking the question was not to show that the appellant was unworthy of belief, the ground for addressing such questions to a defendant, but to attack the credit of a witness called by him.  Section 1(f) contains a specific statutory prohibition against asking the defendant questions relating to his record, save in certain specified circumstances.  The present case is governed by the larger common law principle established over time, whereby as a general rule evidence of bad character is excluded.  To that principle there are several exceptions, of which the most commonly invoked are the rules whereby evidence of similar facts may be adduced and one co-defendant may cross-examine another where it is relevant to his defence.  Part at least of the underlying basis of the principle is that the prejudicial effect of evidence of bad character generally outweighs its probative value: see Director of Public Prosecutions v Boardman  [1975] AC 421 at 451, per Lord Hailsham of St Marylebone.  It follows accordingly that there may be some circumstances, though rarely occurring, in which the contrary will be the case.  Consideration of such cases will require the trial judge to weigh the opposing factors and exercise his discretion.  This is what the judge did in the present case, and in my view he was following the correct principle.  
	It was urged upon us by Mr Donaldson that he failed to give sufficient weight to the potential prejudice which may result from allowing a jury to hear of a defendant’s criminal record – as to which see the material in the Law Commission’s Consultation Paper No 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant and Lloyd-Bostock, The Effects on Juries of Hearing About the Defendant’s Previous Criminal Record: A Simulation Study, [2000] Crim LR 734.  The judge was aware of this factor, to which the law attaches very high importance, but was exercised by the prospect that the jury might be misled about Dr Nugent’s reliability as a witness if he refused permission to ask him about the matter.  Bearing in mind the limited effect which disclosure of the conviction might have had on the jury in deciding on the issues of provocation or diminished responsibility, and the warning which the judge gave the jury about their use of the information, we are not prepared to overrule his exercise of his discretion.  
The Personal Characteristics of the Appellant
Before the decision in R v Smith it was generally thought that in assessing the standard of a reasonable man there should be attributed to him the personal characteristics of the defendant in so far as they were relevant to the gravity of the provocation but not to the standard of self-control to be expected of him.  In other words, the reasonable man must be assumed to share the appellant’s paranoid personality (if the jury accepted that he had such a characteristic) in determining whether the provocation was sufficient to make him react as he did, but he was to be regarded as the objective reasonable man without attributing that characteristic in assessing whether he should have been able to control himself in the face of the provocation.  A simple and vivid example which explains the issue is given in Williams, Textbook of Criminal Law, 2^nd ed, p 898.  The learned author referred to the decision in  R v Raney (1942) 29 Cr App R 14, in which the deceased had knocked away the crutch of a one-legged man.  Lord Goddard CJ said:
“To a one-legged man it is obvious that a blow to a crutch is something that is very different from mere words, a blow to a one-legged man’s crutch might well be regarded by a jury as an act of provocation.” 

Professor Williams commented:
“Although the defendant has only one leg, he can (or should be able to) control his temper as well as the next man; but his handicap may determine the circumstances that infuriate him.  Which leads to the conclusion that the characteristic must relate to the provocation … a defendant is not entitled to a manslaughter verdict merely because he had an artificial leg, was impotent, was under stress, had been sleeping badly, had had a row with his wife, or, in short, was irritable either by nature or on any other account.   ‘Characteristics’ therefore do not include matters that bear simply on the general capacity for self-control.”

	The House of Lords held by a majority in R v Smith, after extensive consideration of the principles and the case-law, that the contrary is correct.  The conviction in that case, where the judge had directed the jury in accordance with the rule thitherto regarded as the law, was quashed by the Court of Appeal and a verdict of manslaughter substituted, and the House of Lords dismissed the Crown’s appeal.  The law is accordingly settled and we do not find it necessary to enter into an exegesis of the issues very fully covered by the members of the House in their opinions.  
Mr Kerr suggested at one point in his argument that the learned judge had in fact directed the jury in terms which would have permitted them to consider the appellant’s personal characteristics in relation to his ability to exercise self-control, notwithstanding his expressed intention not to follow R v Smith.  He pointed to the sentence at page 42 of his charge:
“The question is not merely whether such a person would in like circumstances be provoked to lose his self-control, but also whether he would react to the provocation as the accused did.”

We consider, however, that when one takes the preceding and succeeding sentences the purport of the charge is clear, that the reasonable man was to be taken to share the personal characteristics of the appellant only in so far as related to the gravity of the provocation to him.  The direction accordingly was not in accordance with the law as now laid down in R v Smith.  As it was incorrect on a matter of substance the conviction cannot be regarded as safe.
Verdict of Manslaughter on Different Bases
	Our conclusion on the last issue is sufficient to determine the appeal, but since the final issue was argued before us and it may be of assistance in future cases, I shall express an opinion on it.
	The charge against the appellant on the indictment was one of murder.  It was clear beyond argument that he had killed his wife, and the case made on his behalf was that he should be found not guilty of murder, but guilty of manslaughter.  Three grounds were advanced for this, lack of intent, provocation and diminished responsibility, any one of which would have sufficed to reduce the charge from murder to manslaughter.  It was argued at the trial and before us that it would have been quite in order for the jurors to adopt different routes to the conclusion of a verdict of manslaughter, and that it was not incumbent on them to be in agreement on adopting the same route or routes.  
	In the concluding words of his judgment in the Court of Criminal Appeal in R v Matheson (1958) 42 Cr App R 145 at 153 Lord Goddard CJ said:
“It may happen that on an indictment for murder the defence may ask for a verdict of manslaughter on the ground of diminished responsibility and also on some other ground such as provocation.  If the jury return a verdict of manslaughter, the judge may, and generally should, then ask them whether their verdict is based on diminished responsibility or on the other ground or on both.”

It would appear from this statement that the members of that court (a full court of five judges) envisaged that the jurors would be unanimous in the route by which they reduced the charge to manslaughter.   
When an offence is to be proved it is necessary that each ingredient of the offence be proved to the satisfaction of each and every member of the jury, subject to the majority direction.  Where, however, a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved, but any such matter must be proved to the satisfaction of the whole jury.   In R v Brown (1984) 79 Cr App R 115 the defendant was charged with fraudulently inducing another person to invest money by making a number of statements.  The Court of Appeal held that if the jury found that he had made any one or more of these statements, it would have been entitled to find the charge proved.  It was necessary, however, that they be unanimous in their finding in respect of any statement so grounding the conviction.
The issue relating to defences reducing a charge from murder to manslaughter was considered by the Court of Appeal in R v Jones (1999) The Times, 17 February, where the defendant was charged with murder but there were issues of intent and provocation.  The jury brought in a verdict of not guilty of murder but guilty of manslaughter.  Defence counsel submitted that the verdict should be quashed because the judge had not directed the jury that they should be agreed on the route by which they arrived at that conclusion.  She relied on the principle set out in R v Brown (1989) 79 Cr App R 115 that each ingredient of an offence must be proved to the satisfaction of the whole jury; cf  R v Smith [1997] 1 Cr App R 14.  If some of the jurors might have taken the view that the necessary intent had not been proved and the other half had considered that provocation had not been negatived, then, it was submitted, the jury was not agreed on its verdict.  Crown counsel, on the other hand, sought to distinguish between the essential ingredients of an offence and the basic factual constituents of a defence.  He submitted that the former never alter, whereas it is open to the members of a jury to agree on the reduction of murder to manslaughter while differing on the route by which they reached that conclusion.        
	The court accepted the argument of Crown counsel.  Rose LJ said at page 7 of the transcript of his judgment, which was the judgment of the court:
“In our judgment, in many, though not all, cases, where there is more than one possible basis for a verdict of guilty of manslaughter, it may be convenient and desirable for a judge to invite a jury to indicate the basis on which they return their verdict.  The judge may do this by handing a series of written questions to the jury, in the course of the summing-up.

Those questions may identify the different possible verdicts, not only as between murder and manslaughter, but also as to the reason for the verdict of manslaughter, if such a verdict is to be returned.

Alternatively, a judge may, in an appropriate case, without submitting any such written questions to the jury in the course of his summing-up, provided he has, in the course of his summing-up, warned the jury of his intention to ask the question, ask the jury, after they have returned a verdict of guilty of manslaughter, what is the basis of their verdict.  There is no obligation on a jury to respond to such a question.

However, whether or not a judge follows either of these courses, or neither of them, is entirely a matter for him, or her, in the exercise of his or her discretion.  If authority for that proposition is needed, it can be found in the case of R v Cawthorne [1996] 2 Cr App R (S) 445, [1996] Crim LR 526.  There is no duty on a judge, as it seems to us, to make any such enquiry.  The purpose of such an enquiry, if the trial judge sees fit to make it, is to help the judge in relation to sentence.  The answer to the enquiry will provide the judge with additional information.  The response of the jury is precisely that.  It affords, as it seems to us, an explanation as to why a verdict of not guilty has been returned in relation to murder.  It does not, as it seems to us, provide any necessary indication, as a matter of law, as to the route by which the verdict of guilty of manslaughter has been reached.  In our judgment, provided the jury are agreed that a defendant is guilty of manslaughter, in the sense that they are sure that he perpetrated an unlawful act which caused the death of the deceased, it is unnecessary that there be any unanimity by the jury as to the route by which that verdict is reached.  Indeed, it is implicit in what we have said that the considerations adverted to in Brown, as to the need for a jury to be unanimous as to the ingredients of the offence and the facts substantiating those ingredients, do not have any application in the present circumstances.”

	I regret that I cannot accept the argument which prevailed with the court in R v Jones.  We are always reluctant to differ from decisions of the English Court of Appeal (see the discussion in Beaufort Developments (NI) Ltd v Gilbert-Ash (NI) Ltd [1997] NI 142 at 153), but on careful consideration of the point I do not find it possible to agree with their conclusion.  In the first place, I do not find the distinction drawn by Crown counsel convincing.  I do not consider that a jury is agreed upon its verdict if some of their number do not regard provocation as negatived while others find that a case of diminished responsibility is made out.  I am not persuaded that the case is different in kind from that dealt with in R v Brown.  I do not regard it as sufficient to say that because the consequence of the finding of each group of jurors is that the charge of murder is reduced to manslaughter they are agreed on the essential constituents of the offence of which the defendant is found guilty.  It is of course correct to say that a jury may find a defendant not guilty where its members take different views of the issues in the case, eg some may doubt the identification, some may accept an alibi put forward and some may find that the defendant acted in self-defence.  It is suggested that this forms an analogy with reduction of the charge from murder to manslaughter.  I do not accept that the analogy is valid.  Where the jury find the defendant not guilty, they are not agreed, perhaps for differing reasons, that the Crown has proved all the constituent elements required for a conviction.  Where the issue is reduction from murder to manslaughter, one group of jurors may conclude that the Crown has proved that the defendant caused the death of the victim, but that the necessary intent for murder was not established; another group may find both the actus reus and the mens rea proved, but consider that the defendant may have been provoked.  Yet a third group may be satisfied that the defence has established the defence of diminished responsibility.  I do not find it easy to accept that they can in such a case be regarded as having agreed on the necessary components of a verdict, even if each group arrives at the eventual conclusion that the defendant is guilty of manslaughter.
	If the proposition accepted in R v Jones is correct, then the judge must question the jury about the basis for its verdict.  If he does not do so, he will be unable to ascertain on what basis the jury has reached its verdict, and there may be a very material difference between the sentence which would be imposed if the defendant were provoked and that which would follow if he were suffering from diminished responsibility.  It does not seem to me desirable that the judge should catechise the jury about the different bases on which groups of jurors have reached their conclusion.  Nor do I see how the judge could determine the sentence if it transpires that those bases are different.  The jury might be evenly divided between two or even three bases, or there may be a majority and a minority view.  These considerations seem to me to reinforce my view that the jury must agree (subject to the majority verdict rule) on the basis on which they bring in a verdict of manslaughter.  The judge can then properly ask them about the basis, as was envisaged in R v Matheson.   Although we expressed an opinion to the opposite effect in R v Gribben (1999, unreported) at page 11 of our judgment, after further argument and more detailed consideration I incline to the view that the learned judge’s direction on this issue in the present case was correct.
For the reasons which I have given on the earlier issue, however, we concluded that the conviction must be quashed.  We considered the arguments of counsel relating to the propriety of ordering a new trial.  We formed the view that it would be correct in the present case to hold a new trial, and we so ordered.

COGHLIN J
	I agree with the judgment given by the Lord Chief Justice.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN

v

TREVOR McCANDLESS

_____ 

JUDGMENT

OF

CARSWELL LCJ

____