Bunch, R. v [2013] EWCA Crim 2498

[2013] EWCA Crim 2498Case No 201205201 B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 6th December 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE JACKSON
MR JUSTICE HOLROYDE
HIS HONOUR JUDGE MILFORD QC
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
MARTIN JOHN BUNCH
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr N L Lithman QC appeared for Applicant
J U D G M E N T
[1]MR JUSTICE HOLROYDE: On 14th August 2012 in the Crown Court at Chelmsford this applicant, Martin Bunch, was convicted of the murder of Jeanette Goodwin. He was subsequently sentenced by the trial judge, His Honour Judge Gratwicke, to life imprisonment with a minimum term of 27 years less days spent on remand in custody. His application for leave to appeal against his conviction was refused by the single judge. He now renews that application to the full court. The court is grateful to Mr Lithman QC, who represented the applicant at trial, for his submissions on the applicant's behalf today, which he has made pro bono.[2]The facts can, for present purposes, be very briefly stated. The applicant and the deceased had had an affair. It was the prosecution case that the affair had ended by about late 2010. There was evidence that in early 2011 the applicant had made phone calls and sent text messages to the deceased in threatening and abusive terms. There had been several incidents, one of which had resulted in the applicant's conviction for an offence of causing criminal damage at the deceased's home. The police had been called because of the applicant's behaviour in another incident.[3]On the afternoon of 24th July 2011 the deceased was with her husband in the garden of her home. The applicant, who was at that time living with his mother, suddenly appeared in the garden. The deceased went into the house to activate a panic alarm. The applicant followed her and almost immediately attacked her with a knife which he had brought with him from a set of similar knives at his mother's house. He stabbed the deceased more than 20 times, principally in the upper chest and the arm, and he inflicted a total of 36 sharp wounds. The nature of the attack and the level of force used in the stabbing plainly pointed to an intention to kill, or at least to cause really serious injury.[4]There was overwhelming evidence that it was the applicant who had fatally attacked the deceased. A short time before the killing he had angrily complained to his mother that the deceased would not talk to him and had said that he was going to kill her. The evidence of the deceased's husband was that at the time of the fatal attack the applicant said something like, "I told you I would kill her". A footwear impression matching the applicant's shoe was found in the deceased's blood at the scene. After the attack the applicant returned to his mother's house, taking with him the knife which was stained with the blood of the deceased. He admitted the stabbing to his mother, his sister and a friend of his sister and expressed the hope that his victim would die.[5]Despite all that, the applicant denied that he had gone to the deceased's house and denied that he had stabbed her. His defence was that he had no recollection of that afternoon because he had drunk a great deal of alcohol and had used some cocaine, but that he would not have hurt the deceased and played no part in her death. He cynically suggested that the deceased's husband must have killed her. The husband, widowed and blameless, was cross-examined to that effect.[6]In the alternative to that defence, it was argued on the applicant's behalf that if he had killed the deceased, he had done so when intoxicated to such an extent that he lacked the intention necessary for murder and should be convicted only of manslaughter. Evidence was given by witnesses for the prosecution and for the defence as to the extent of the applicant's drinking on and before the day of the killing. The gist of the evidence given by the applicant and by witnesses called on his behalf was that he had become depressed as a result of a series of misfortunes which had befallen him and his family since 2008, and had become a heavy drinker.[7]However, the applicant called no medical evidence as to whether he was physically dependent upon alcohol. A physical dependence upon alcohol, such as to make the consumption of alcohol involuntary, must be distinguished from voluntary intoxication, however frequent or heavy. The only medical evidence on that topic came from a consultant psychiatrist called by the prosecution, Dr Carr. Her clear opinion was that there was no evidence of physical dependence on alcohol, that the applicant had not been suffering from a mental disorder at the time of the killing and that there was nothing to suggest an abnormality which would impair his mental functioning. The jury learned during cross-examination of the applicant that he had been seen by three other psychiatrists but none was called as a defence witness.[8]The sole ground of appeal is that the judge was wrong to refuse to leave to the jury the partial defence of diminished responsibility. Mr Lithman submits that the absence of medical evidence to support that plea did not preclude the applicant from advancing the defence on the basis of such evidence as had been adduced before the jury. In this regard Mr Lithman relied on evidence that a doctor who had seen the applicant a few days before the killing had referred in a note to the applicant being "obviously an alcoholic"; but the doctor concerned gave evidence that he had used that phrase only to mean that the applicant was drinking far too much. Mr Lithman also relied on the evidence of a mental health nurse who spoke of the applicant's heavy drinking and told the jury that the applicant was prescribed both anti-depressants and a drug to suppress his craving for alcohol. However, this witness described the applicant as a binge drinker, and she gave evidence that on 18th July the applicant told her he had not been drinking for seven days. Other witnesses also spoke of binge drinking. The applicant himself in his evidence denied that he was dependent on alcohol and told the jury that he could control his desire to drink if it was a working day. We note that at page 3B of the transcript of his ruling the trial judge summarised the evidence in the following way:
"The evidence of alcohol dependence is, in my judgment, weak and unsupported by expert evidence."
[9]Section 2 of the Homicide Act 1957, as amended by the Coroners and

Justice Act 2009, provides in part as follows:

"(1) A person ('D') who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which - (a) arose from a recognised mental condition, (b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and (c) provides an explanation for D's acts and omissions in doing or being a party to the killing. (1A) Those things are - (a) to understand the nature of D's conduct; (b) to form a rational judgment; (c) to exercise self-control. (1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct. (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder."
[10]The recognised medical condition from which it is suggested the applicant was suffering was alcohol dependency. The judge indicated that for the purposes of the ruling he would be prepared to accept that the applicant was suffering from that condition, but concluded that there was no evidence on which the jury could find that the applicant was suffering from an abnormality of mental functioning which arose from that medical condition and which substantially impaired one of the three capacities mentioned in the Act.[11]The judge held, in our view correctly, that the amendment of section 2 by the 2009 Act did not diminish the authority of cases such as Byrne [1960] 2 QB 396 and Dix 74 Cr App R 306, in which it was held that medical evidence, though not in terms required by section 2 of the Act, was "a practical necessity" if the defence was to succeed, because the onus was on the defendant. The judge quoted from a passage at paragraph 19-83 of the current edition of Archbold in which the learned editors say, in our view correctly:
"... it will be for the jury to decide whether the accused was suffering from an abnormality of mental functioning, whether this arose from a medical condition, whether it substantially impaired his ability to do one of the three things mentioned in subsection (1A) and whether it caused, or was a significant contributory factor in causing the defendant to carry out the killing. Medical evidence will, however, be relevant to all these issues, particularly the first three (as to the second, it will be critical). As before ... it is submitted that the jury will not be bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it."
[12]In our judgment, the judge's reasoning and conclusion cannot be faulted. The evidence on which Mr Lithman seeks to rely was wholly insufficient to found the partial defence of diminished responsibility. Even if on the totality of the evidence the jury might properly have found that the defendant probably suffered from alcohol dependence, which we doubt, there was no evidence on which they could make any decision favourable to the applicant in relation to the other ingredients of the defence.[13]In this context the law draws an important distinction between voluntary intoxication and alcohol dependency. The former cannot found a defence of diminished responsibility: see Dowds [2012] 1 Cr App R 34. The latter may be capable of doing so, but on the evidence in this case it would have been quite wrong for the judge to permit the defence of diminished responsibility to go to the jury. There was, quite simply, no evidence on which the applicant could begin to discharge the burden of proving on the balance of probabilities each of the matters which section 2 would require him to prove.[14]This renewed application accordingly fails and is dismissed.