England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court at Blackfriars
HHJ Pontius
T 20067255

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2010

LORD JUSTICE HOOPER :

1. On 24^th July 2006 at the Crown Court at Blackfriars (H.H.J. Pontius) the applicant was convicted of the murder on 10^th September 2005 of Charlotte Maltese with whom he had had a long running relationship complicated by break-ups and disputes. He was sentenced to life imprisonment with a minimum term of 17 years.
2. There was no dispute that the appellant, as he now is, killed the deceased. The issue before the jury was whether in law the appellant had been provoked. The prosecution did not dispute that the appellant had been to some extent provoked by the deceased but submitted that the provocation was not sufficient to lead a reasonable man to do what the appellant had done.
3. At the conclusion of the hearing we announced that the appeal would be allowed having regard to fresh evidence and a new trial ordered. The fresh evidence shows that the appellant suffered at the time of the killing from bipolar affective disorder (manic depression), hereinafter called "the disorder" and, it is submitted, could properly support the conclusion that the appellant's responsibility was substantially diminished.
4. Because we are ordering a retrial we shall give only brief reasons.
5. Prior to the trial and whilst on bail the appellant had been referred by a general practitioner to a consultant psychiatrist, Dr Newson-Smith, not as part of a forensic assessment in connection with the impending trial but for "therapeutic reasons" (see her letters of 26 April and 16 May 2006). She put him on medication and wrote in a letter to the general practitioner that:

... there is enough evidence to consider Martin Inglis has suffered from pathological mood swings and although I have not seen him in them, a diagnosis of bipolar II is likely as well as many personality and relationship issues."

6. Of the two forensic psychiatrists instructed by the defence one opined that the appellant was not suffering from any personality disorder at the time of the killing and the other said any evidence of the disorder was equivocal. In those circumstances it is not surprising that the defence ran provocation and not diminished responsibility.
7. This is not a case where a deliberate decision has been made not to "run" a point until conviction and then run that point in the Court of Appeal. There was, at the trial, no realistic forensic basis to advance diminished responsibility.
8. The fresh evidence comes principally from three psychiatrists, including one instructed by the respondent, who agree that the appellant suffered both before and at the time of the killing from the disorder, and indeed continues to suffer from the condition for which he now receives medication. It was also agreed that the appellant was in a depressive phase of the disorder from November 2004 to April/May 2005. There was no dispute that the responsibility of a person who kills in a depressive phase of the disorder may be substantially diminished.
9. It was the conclusion of the psychiatrist instructed by the respondent, Dr Johns, that the evidence in the trial papers showed that the appellant was in a state of remission at the time of the killing. In other words, at the time of the killing, he was in neither a depressive phase nor a manic phase and therefore his responsibility could not have been substantially impaired at the time of the killing. Mr Dennis QC for the respondent took us through that evidence in detail to support that. However Dr Johns said that a remission could occur spontaneously.
10. The conclusion of Dr Johns that the appellant was in a state of remission at the time of the killing was disputed by Dr Joseph and in a written report from one of this country's leading experts on the disorder, Professor Goodwin. In the view of Dr Joseph the appellant was suffering from the symptoms of a depressive episode of the disorder at the time of the killing. Mr Sturman QC also took us through the evidence supporting this conclusion. He pointed to the fact there had been an atmosphere at the restaurant the night before the killing; that the appellant was arguing with her; that he was quiet – a sign of depression – during the riding lesson on the afternoon of the killing; and that the arguments overheard by neighbours tended to involve a raised voice on her side, and little on his, suggestive of the submissive attitude that many people may have when depressed.
11. Mr Sturman also drew to our attention supporting fresh evidence from Erica Malliaro, a financial analyst living now in Boston USA. She was able to give a detailed account of the appellant's condition in the period between May and the killing. Mr Dennis did express his concerns about her evidence but she was not required to attend. On the material available to us her evidence is capable of belief.
12. In answer to the principal submission made by Mr Dennis that the evidence at the trial did not support the conclusion that the appellant was in a depressive episode at the time of the killing, Mr Sturman also made the point that if the defence had been one of diminished responsibility further questions could have been asked of the witnesses who gave evidence, evidence would have been led from Erica Malliaro and another witness and evidence would have been introduced about his behaviour in prison after arrest which, so it is submitted, tends to support the conclusion that at the time of the killing the appellant was in a depressive phase.
13. In our view the fresh evidence is of a sufficient weight and credibility that a jury should consider it on a retrial. Mr Sturman said that, on his present instructions, the only defence at the retrial would be diminished responsibility. We invite the nominated trial judge to conduct a case management hearing as soon as practicable and to make the necessary directions to ensure that the retrial is conducted in accordance with the overriding objective in Part 1 of the Criminal Procedure Rules.