Jersey (Attorney General) v. Holley, (2005) 341 N.R. 285 (PC)

• Case Date: June 15, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 341 N.R. 285 (PC)

Jersey (A.G.) v. Holley (2005), 341 N.R. 285 (PC)

MLB headnote and full text

Temp. Cite: [2005] N.R. TBEd. NO.005

Her Majesty's Attorney General for Jersey (appellant) v. Dennis Peter Holley (respondent)

(Appeal No. 3 of 2004; [2005] UKPC 23)

Indexed As: Jersey (Attorney General) v. Holley

Judicial Committee of the Privy Council

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell

June 15, 2005.

Summary:

The accused, a chronic alcoholic, was convicted of murder. He admitted killing his longstanding girlfriend with an axe while under the influence of alcohol. The sole issue at trial was provocation. The accused appealed.

The Jersey Court of Appeal, in a decision reported [2003] J.L.R. 22, allowed the ap­peal and set aside the conviction on the ground that the trial judge had misdirected the jury on the issue of provocation. A con­viction of manslaughter was substituted for the murder conviction. The Attorney General of Jersey appealed.

The Judicial Committee of the Privy Coun­cil used this opportunity to clarify the law of provocation for England and Jersey, the lat­ter's laws being the same as England's. In the result the court allowed the appeal, but for procedural reasons ruled that the order made by the Court of Appeal should stand.

Criminal Law - Topic 40

General principles - Provocation - General - The Judicial Committee of the Privy Coun­cil clarified the law of provocation, especially respecting the concept of what constituted a reasonable person for pur­poses of provocation - See paragraphs 1 to 41.

Criminal Law - Topic 1280

Murder - Provocation - General principles - [See Criminal Law - Topic 40 ].

Criminal Law - Topic 1284

Murder - Provocation - Ordinary person - What constitutes - The Judicial Committee of the Privy Council stated that there were two ingredients to the defence of provoca­tion under s. 3 of the Homicide Act: the first ingredient, the subjective or factual ingredient, being that the accused was pro­voked into losing his self-control; and the second ingredient, the objective or evalua­tive ingredient, raising the question of whether the provocation was enough to make a reasonable man do what the ac­cused did - The court discussed the con­cept of the reasonable man, stating that this meant a person having ordinary powers of self control - Each accused was to be judged by the same "ordinary person" stan­dard - The court stated that for the pur­poses of the second ingredient, persons suf­fering from a serious mental abnormal­ity, the disease of alcoholism, battered woman syndrome, etc. were to be judged by the standard of a person having ordi­nary powers of self-control - The court noted, however, that persons with mental abnor­malities might benefit from the dim­inished responsibility provisions of the Homicide Act - See paragraphs 5 to 23.

Criminal Law - Topic 1284

Murder - Provocation - Ordinary person - What constitutes - The accused and his girlfriend, both alcoholics, lived together for a number of years - They regularly drank to excess and their relationship in­volved many incidents of violence - The girlfriend was known to make derogatory comments affecting the accused's self esteem - During one such incident the girl­friend told the accused she had just had sex with another man - The accused picked up an axe - The girlfriend said that he lacked the "guts" to do it, whereupon he lifted the axe and struck her several times -He was convicted of murder - The accused ap­pealed - The Jersey Court of Appeal al­lowed the appeal and substituted a man­slaughter conviction, citing a misdi­rection on the provocation issue - The Attorney Gen­eral of Jersey appealed - The Judicial Com­mittee of the Privy Council allowed the appeal, holding that the Court of Ap­peal erred in considering that the accused's chronic alcoholism was a matter to be taken in to account by the jury when con­sidering whether a person of ordinary pow­ers of self control (i.e., a reasonable per­son) would have done what the accused did - The court took this opportunity to clarify the law respecting provocation - See paragraphs 1 to 41.

Cases Noticed:

R. v. Smith (Morgan), [2001] 1 A.C. 146 (H.L.), not folld. [paras. 1, 73].

Luc Thiet Thuan v. R., [1997] A.C. 131 (H.L.), refd to. [paras. 1, 59, 72].

R. v. Camplin, [1978] A.C. 705 (H.L.), refd to. [paras. 1, 44].

R. v. Morhall, [1996] A.C. 90; 185 N.R. 310 (H.L.), refd to. [paras. 1, 47, 76].

R. v. Kirkham (1837), 8 Car. & P. 115, refd to. [paras. 9, 44].

R. v. Welsh (1869), 11 Cox C.C. 336, refd to. [paras. 9, 46].

Mancini v. Director of Public Prosecutions, [1942] A.C. 1 (H.L.), refd to. [paras. 9, 46].

R. v. Duffy, [1949] 1 All E.R. 932, refd to. [para. 9].

R. v. Raven, [1982] Crim. L.R. 51 (Cent. Crim. Ct.), refd to. [para. 16].

R. v. Ahluwalia, [1992] 4 All E.R. 889 (C.A.), refd to. [paras. 16, 61].

R. v. Hayward (1833), 6 C. & P. 157, refd to. [para. 44].

R. v. Thomas (1837), 7 C. & P. 817, refd to. [para. 44].

Holmes v. Director of Public Prosecutions, [1946] A.C. 588 (H.L.), refd to. [para. 44].

R. v. Baillie, [1995] 2 Cr. App. Rep. 31, refd to. [para. 44].

R. v. Mawgridge (1707), Kel. 119, refd to. [para. 46].

R. v. Selten (1871), 11 Cox C.C. 674, refd to. [para. 46].

R. v. Alexander (1913), 9 Cr. App. Rep. 139, refd to. [para. 46].

R. v. McCarthy, [1954] 2 Q.B. 105, refd to. [para. 47].

R. v. Lesbini, [1914] 3 K.B. 1116 (C.C.A.), refd to. [para. 48].

Bedder v. Director of Public Prosecutions, [1954] 1 W.L.R. 1119 (H.L.), refd to. [para. 48].

Reyes v. R., [2002] UKPC 11; [2002] 2 A.C. 235, refd to. [para. 49].

R. v. Doughty (1986), 83 Cr. App. Rep. 319, refd to. [para. 52].

Phillips v. R., [1969] 2 A.C. 130, refd to. [para. 53].

R. v. Newell (1980), 71 Cr. App. Rep. 331, refd to. [para. 59].

R. v. McGregor, [1962] N.Z.L.R. 1069 (C.A.), refd to. [para. 59].

R. v. McCarthy, [1992] 2 N.Z.L.R. 550 (C.A.), refd to. [para. 59].

R. v. Dryden, [1995] 4 All E.R. 987, refd to. [para. 61].

R. v. Humphreys, [1995] 4 All E.R. 1008, refd to. [para. 62].

R. v. Morhall, [1993] 4 All E.R. 888 (C.A.), refd to. [para. 63].

R. v. Thornton (No. 2), [1996] 1 W.L.R. 1174, refd to. [para. 64].

R. (Farnell) v. Criminal Cases Review Commission, [2003] E.W.H.C. 835 (Admin.), refd to. [para. 66].

R. v. Weller, [2003] E.W.C.A. Crim. 815 (C.A.), refd to. [para. 67].

R. v. Fenton (1975), 61 Cr. App. Rep. 261, refd to. [para. 68].

R. v. Rongonui, [2000] 2 N.Z.L.R. 385, refd to. [para. 73].

R. v. Tandy, [1989] 1 W.L.R. 350, refd to. [para. 76].

Statutes Noticed:

Homicide (Jersey) Law 1986, art. 4 [paras. 4, 50].

Authors and Works Noticed:

Ashworth, A.J., The Doctrine of Provoca­tion, [1976] C.L.J. 292, p. 300 [paras. 66, 72].

Blom-Cooper and Morris, With Malice Aforethought (2004), generally [para. 67].

Holmes, Jr., Oliver Wendell, The Com­mon Law (1881), p. 1 [para. 72].

Russell on Crime (11th Ed. 1958), vol. 1, pp. 605 to 609 [para. 48].

United Kingdom, Criminal Law Revisions Committee on Offences Against the Per­son, Working Paper (1976), para. 53 [para. 66].

United Kingdom, Law Commission Re­port, Partial Defences to Murder, Law Com. No. 290, 2004 Cm. 6301, paras. 2.10 [para. 27]; 5.44 [para. 66].

United Kingdom, Report of the Royal Commission on Capital Punishment (1949-1953), paras. 134, 145 [para. 49]; 151 [para. 52].

Counsel:

Not disclosed.

Agents:

Not disclosed.

This appeal was heard before Lord Bing­ham of Cornhill, Lord Nicholls of Birken­head, Lord Hoffmann, Lord Hope of Craig­head, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Ges­ting­thorpe, Baroness Hale of Richmond and Lord Cars­well of the Judicial Committee of the Privy Council.

The decision of the Privy Council was delivered on June 15, 2005, when the fol­lowing opin­ions were filed:

Lord Nicholls of Birkenhead (Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond, concurring) - see paragraphs 1 to 41;

Lord Bingham of Cornhill and Lord Hoff­mann, dissenting - see paragraphs 42 to 68;

Lord Carswell, dissenting - see para­graphs 69 to 77.