"It is true that one could mount an argument in law to suggest that the defence account, even if accepted, might amount either to gross negligence, on the one hand, or, arguably, an unlawful and dangerous act on the other; and so there would be room, arguably, for an alternative verdict, even on the defence account, of manslaughter …"
"(2) On an indictment for murder a person found not guilty of murder may be found guilty- (a) of manslaughter, or of causing grievous bodily harm with intent to do so; or (b) of any offence of which he may be found guilty under an enactment specifically so providing, or under section 4(2) of this Act [assisting offenders]; or (c) of an attempt to commit murder, or of an attempt to commit any other offence of which he might be found guilty; but may not be found guilty of any offence not included above. (3) Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."
"We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. 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. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence - we say no more than that - upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand."
"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."
"There may be cases where, in the interests of the prisoner, a judge ought to do so; there are certainly many cases where the interests of justice are not met unless it is pointed out to the Jury that they may convict of a lesser offence, or, thinking it a case of 'neck or nothing', they may acquit altogether."
"These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the Jury by advising them of the possibility of a verdict which could make no sense. We can also envisage cases where the principal offence is so grave and the alternative so trifling, that the judge thinks it best not to distract the Jury by forcing them to consider something which is remote from the real point of the case: and this may be so particularly where there are already a series of realistic alternatives which call for careful handling by judge and Jury, and where the possibility of conviction for a trivial offence would be an unnecessary further complication. On the other hand the interests of justice will sometimes demand that the lesser alternatives are left to the Jury. It must be remembered that justice serves the interests of the public as well as those of the defendant, and if the 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."
"To interfere with the verdict would require us to identify solid grounds for suspecting that the members of the jury had foresworn their oaths by deliberately returning a verdict of guilty when they were not sure of it, simply to avoid an unwanted outcome."
"What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct."
"We consider that, in a case such as this, where there is a factual situation which requires a jury to consider the extent of the joint enterprise and whether all the ingredients of the offence have been proved against one of the defendants, and the fact that the evidence was capable of showing that different offences may have been committed by him, the jury should have that opportunity to consider the alternatives. This is not a case, such as often occurs, where there is a single main clear count charging an offence, and the alternatives to it are not viable alternatives. This is a case where the alternatives were, on the evidence before the jury, clearly viable as regards the appellant … The present case undoubtedly involved disgraceful conduct on the part of this appellant. He had been identified as one of the men in the minicab. It was clear and undisputed on the evidence that he had taken part in a joint attack on the minicab driver in the early hours of the morning and had, on any view, inflicted some injuries upon him. Indeed, on one view, he was the person who had started the actual violence. It was disgraceful conduct, and it would cause outrage if the appellant, having been identified as one of the men involved, were to 'get clean away'. If the jury were to have a proper opportunity to consider all the alternatives which were open to them in respect of the appellant, they should have had further directions from the Judge upon the alternative verdicts that were open to them. The Judge laid the ground in his directions about what was involved in a joint enterprise, and the different views that might be taken of how far the joint enterprise went. He referred to the facts, which indicated the increased gravity of the later parts of the incident, and the role of Oakley in aggravating the assault, as well as being involved in the robbery. But he did not then go on to direct the jury that there were alternative verdicts which were open to them. In our judgment, that did amount to a material irregularity in the conduct of this trial, and makes the appellant's conviction unsafe."
"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."
"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 … Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused."
"Moreover, it is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction —in this context or any other—precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner's intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option— convicting the defendant of simple assault—could not have resulted in a different verdict."
"Q. So it rather looks as if pressure to the neck is a pretty dangerous business? A. It - certainly from my practice I know and from reports recorded in the forensic literature, there is no safe way to squeeze someone's neck. It always carries with it the risk of this stimulating these receptors and producing this vagal response. Q. We can all understand that if you are choking someone, in the sense that you are restricting either the blood flow or the airflow in either of the first two ways, the vascular or the respiratory are potential ways of strangling someone but it is going to take time? A. Yes. Q. And there may be some sort of struggle or the opportunity to say: "
"Q. Doctor, I want to ask you about something else, please, and that is blood, not bruising blood, but blood in the way I am about to describe. If I have understood you correctly, vagal inhibition, stimulating the bearer (?) receptors, can make you drop dead? A. Yes. Q. Presumably if what you were saying earlier was right, that would mean anywhere on the neck that might happen? A. Absolutely. Pressure anywhere on the neck is an extremely dangerous action. Extremely dangerous action."
"Mr. Kelsey-Fry: May I raise what perhaps might be the first and most important topic. Ordinarily, of course, in a charge of murder there is an alternative verdict available. Judge Brown: Yes. Mr. Kelsey-Fry: The way the Crown have put the case, from start to finish, is that this was a deliberate killing, and it is a contest between the Crown's allegation of a deliberate killing on the one hand, and accident on the other. It is true that one could mount an argument in law to suggest that the defence account, even if accepted, might amount either to gross negligence, on the one hand, or, arguably, an unlawful and dangerous act on the other; and so there would be room, arguably, for an alternative verdict, even on the Defence account, of manslaughter. The Crown's view is that that would be quite unfair and quite wrong 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."
"Do you want us to make representation, or do you want to roll the dice and be home with Lisa and the boys?"
"Accordingly, whether the line beyond which consent becomes immaterial is drawn at the point suggested by Lord Jauncey and Lord Lowry [in R v Brown[1994] AC 212 ], the point at which common assault becomes assault occasioning actual bodily harm, or at some higher level, where the evidence looked at objectively reveals a realistic risk of a more than transient or trivial injury, it is plain, in our judgment, that the activities [engaged] in by this appellant and his partner went well beyond that line. The learned judge, in giving his ruling said: 'In this case, the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause [for] the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life; on the second, there was a degree of injury to the body.' With that conclusion, this Court entirely agrees."
"The direction which [the trial judge] gave is completely in accordance with established law, which, possibly with one exception to which I shall presently refer, has never been challenged. In Rex v Larkin(1942) 29 Cr.App.R.18 , Humphreys J said, at p.23: 'Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.' I agree entirely with Lawton LJ that that is an admirably clear statement of the law which has been applied many times. It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of manslaughter vary so infinitely in their gravity. They may amount to little more than pure inadvertence and sometimes to little less than murder. I am sure that in Reg. v Church[1966] 1 QB 59 Edmund Davies J, in giving the judgment of the court, did not intend to differ from or qualify anything which had been said in Rex v Larkin, 29 Cr App R 18. Indeed he was restating the principle laid down in that case by illustrating the sense in which the word "dangerous" should be understood. Edmund Davies J said, at p. 70: 'For such a verdict' (guilty of manslaughter) 'inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.' The test is still the objective test. In judging whether the act was dangerous the test is not did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger."
"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 although counsel may not have raised some question himself."
"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."
"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 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 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."
"It is to be noted that there are two critical features of this case, which distinguish it from the previous cases. First, as we have seen, it is the fact that both counsel for the prosecution and the defence thought that it would not be in the interests of the fair trial of the defendant, if the offence of manslaughter was left to the jury. The second distinction is that the only basis upon which the jury could convict the appellant of manslaughter, was factually wholly different from the case that the prosecution was advancing in order to obtain a conviction of murder. It was not, for example, a case where it would be possible for the jury to come to the conclusion that the appellant was not guilty of murder but guilty of manslaughter on the case for the prosecution."
"In addition, at that stage of the case all the evidence, on behalf of both the prosecution and the defence, had been given so it could well have caused unfairness to the appellant to change fundamentally the nature of the case against him during the summing-up. While it is conceded that there was a viable basis for a verdict of manslaughter based upon the appellant's account, namely that it involved an unlawful and dangerous act of tightening the ligature around the victim's neck during consensual asphyxial sex, such a view of the facts would be wholly inconsistent with the case for the prosecution. So, for the judge to introduce the possibility of a verdict of manslaughter on these grounds would have transformed the nature of the case that the appellant was required to meet. The jury would not only have had to decide whether the victim may have died in the course of consensual sexual intercourse, but they would also have had to come to a conclusion as to the degree of danger that consensual asphyxial sexual intercourse, as practised by the appellant, involved."
"83. … What is important here is that the judge accepted it would be unfair, and therefore unjust, to leave the alternative count for the very good reason that it involved a different and inconsistent case from that put forward by the prosecution. If, in this case, manslaughter had been included, and the jury convicted the appellant of this offence, an appeal would almost inevitably have followed, and it is doubtful whether the conviction could have been regarded as safe. There may be cases where the approach based upon not withdrawing a defence from the jury should be extended to situations where the alternative verdict would not be a defence, but this case is not that situation. The judge's task is, as far as practical and appropriate, to simplify the task of the jury, not to make it more complicated than it would otherwise be. 84. As our detailed consideration earlier in this judgment of the facts is intended to make clear, the case for the prosecution required the jury to consider a formidable body of circumstantial evidence. The critical issue for the jury to determine, however, was whether it was possible for the victim's death to have been an accident. In this situation, to introduce an alternative count would make the jury's task far more complicated without enhancing the interests of justice. Properly understood, the authorities only require a jury to be directed as to manslaughter, as an alternative to murder, when it is in the interests of justice for this to happen. It is not in the interests of justice for this to happen where it would result in unfairness to a defendant, or where it would make the task of the jury far more difficult without there being any sufficient countervailing benefit which justifies an additional burden being placed upon the jury."
"Cases vary so infinitely that one can well envisage a case where the possibility of conviction of some lesser offence has been completely ignored by both prosecution and defence - it may be that the accused has never had occasion to deal with the matter, has lost a chance of giving some evidence himself about it or calling some evidence to cover or guard against the possibility of conviction of that lesser offence - and in such a case, where there might well be prejudice to an accused, it seems to this court there must be a discretion in the trial judge whether or not to leave the lesser offence to the jury."
"on the facts of this case the judge was entitled to conclude that the alternative of theft was relatively so trifling that the jury's attention upon the essential issue - did the appellant intend violence to be used? - should not be distracted."
"What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct. If they are so satisfied then the conviction cannot be safe or satisfactory."
"The present case undoubtedly involved disgraceful conduct on the part of this appellant. He had been identified as one of the men in the minicab. It was clear and undisputed on the evidence that he had taken part in a joint attack on the minicab driver in the early hours of the morning and had, on any view, inflicted some injuries upon him. Indeed, on one view, he was the person who had started the actual violence. It was disgraceful conduct, and it would cause outrage if the appellant, having been identified as one of the men involved, were to 'get clean away'. If the jury were to have a proper opportunity to consider all the alternatives which were open to them in respect of the appellant, they should have had further directions from the Judge upon the alternative verdicts that were open to them. The Judge laid the ground in his directions about what was involved in a joint enterprise, and the different views that might be taken of how far the joint enterprise went. He referred to the facts, which indicated the increased gravity of the later parts of the incident, and the role of Oakley in aggravating the assault, as well as being involved in the robbery. But he did not then go on to direct the jury that there were alternative verdicts which were open to them."
"Their Lordships consider that the trial judge was wrong to deprive the jury of the opportunity of considering whether, in the light of the mixed statements, the Crown had proved in the case of each appellant that the 'triggerman' test was satisfied. He ought to have directed the jury to consider this question, and to have left with them the alternative verdict that the appellants were guilty of non-capital murder which would have been open to them on the evidence if they were satisfied that the appellants were acting in pursuance of a joint enterprise. They were, of course, left with the alternative verdict of not guilty [of capital murder]. But, as Lord Ackner explained in R v Maxwell[1990] 1 WLR 401 , 408, if the judge fails to leave an alternative offence to the jury, the court must consider whether the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct. That was a very real possibility in this case. There was ample evidence that the appellants had guns in their hands, and that they had been using them during their running battle which they and their companions had started with the police. According to the police witnesses, all four men had been attempting to inflict grievous bodily harm on them from the start of this incident."
"The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice."
"A jury which would hesitate to convict of murder may be only too glad to take a middle course which is offered to them."
"These statements are inconsistent with the notion that an appellate court must assume, on the part of a jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences. Indeed, juries are ordinarily asked to return a general verdict. They make their findings of fact in the context of instructions as to the consequences of such findings, and for the purpose of returning a verdict which expresses those consequences."
"30. The argument for the appellant is a claim that this Court should proceed on one of two bases, each of which necessarily involves an assumption that, if manslaughter had been left as an issue, the jury might have disregarded their sworn duty to give a verdict in accordance with the evidence. The first assumption is that, if manslaughter had been left, the jury might have convicted of manslaughter even though they knew, because of the trial judge's directions, that the appellant was guilty of murder. The second assumption is that the jurors were not convinced beyond reasonable doubt that the appellant knew that his brother intended to kill or to inflict grievous bodily harm on Linsley, that they knew therefore that he was not guilty of murder, but that they nevertheless convicted him of murder rather than acquit him and see him go free. In my respectful opinion, as a matter of legal policy, no court of justice can entertain either assumption. 31. The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials."
"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."
"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."
"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."
"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."
"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."
"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."
"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 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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"A brutal crime had been committed, and a measure of mental weakness might have been regarded from quite a different angle if the jury were aware that its affirmance did not involve complete acquittal."