CARE2712
Delivered:	16 November 1998
	IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

	_____

	THE QUEEN

	v

	JAMES DANIEL McCULLOUGH

	_____

CARSWELL LCJ

This is an appeal against conviction and sentence by James Daniel McCullough.  He was convicted at Newry Crown Court on 18 December 1997 after a trial before Nicholson LJ and a jury on two counts.  On the first count he was found not guilty of murder but guilty of the manslaughter of Colum Eugene Hughes and on the second count of assault occasioning actual bodily harm to Achena (properly Athina) Neofitou.  He was sentenced to 13 years' imprisonment on the first count and 18 months on the second count, both sentences to be concurrent.  He has appealed with leave against conviction and sentence.
His co-defendant on the indictment, Bronagh Trainor, was charged with doing an act with intent to pervert the course of public justice, namely attempting to dissuade Patrick Joseph Fegan from assisting police in the course of their investigation into the murder of Colum Eugene Hughes.  She was found not guilty by direction of the trial judge.  
The charges arose out of the events on the night of 2/3 October 1996 in and outside a bar known as Goodfellas Bar, Monaghan Street, Newry.  Ms Neofitou went to that bar somewhere around 6pm in company with the deceased, and they spent the evening drinking there.  The appellant was one of a group consisting of himself, Patrick (otherwise known as Ted) Fegan and three women, who spent the evening in the bar.  All the persons concerned seemed to have taken a great deal to drink during the evening, and not surprisingly their accounts of the material events are not altogether easy to harmonise.
The evidence established that the appellant and Fegan were still in the bar at about 12.10am, when a taxi driver, John Taggart, saw them going back inside and evidently not ready to depart.  At some stage after this, possibly approaching 12.30am, Colum Hughes went out of the bar through the door into the alleyway, leaving Ms Neofitou seated on a stool at the bar.  Some little time after that she was grabbed from behind by the neck by the appellant with both hands.  He squeezed her neck in a throttling grip and forced her down to the floor.  He maintained this grip for sufficient time for her to commence to lose consciousness, but the appellant was then restrained by the barman and released her.  Ms Neofitou described the attack as being very violent and said that it felt as if she was being strangled to death.  She was considerably shocked and moderately bruised by reason of this assault.  It was suggested to her that she provoked the appellant by remarks which she had made, but apart from the fact that that could not justify an attack of this kind it is not a critical factor in determining the sequence of events in respect of the attack upon Colum Hughes.
After this attack the appellant left the bar through the door into the alleyway and Fegan also left the bar by the same door.  They appear to have gone upstairs to the lavatory, for the barman Gerard McDonald stated that he found the appellant there lying on the floor and helped him down the stairs.  He pushed the appellant, who was rather unwilling to leave, into the alleyway and he was followed there by Fegan and by Bronagh Trainor.  Shortly afterwards those inside the bar heard the sound of knocking on that door, and also a noise which they described as being like crates and kegs rattling in the alley, which continued for some little time.
A few minutes later there was a banging on the door leading into the alleyway and Gerard McDonald opened it, admitting the appellant, Fegan and Bronagh Trainor.  Ms Trainor told him that there was a body lying in the alleyway, and McDonald went out to find the body of Colum Hughes lying badly injured on his back with his head next to the wall of the bar.  Police and ambulance were summoned by a 999 call logged at 12.42am, and the ambulance arrived some 3 minutes later.  Mr Hughes was taken to Daisy Hill Hospital, but was certified dead on arrival.  
The deceased had sustained very severe injuries to his head, the main cause of his death.  Professor Crane, the State Pathologist, who carried out the post-mortem examination of the body, found that the skull was fractured into a number of fragments.  The cause of death was bruising and oedema of the brain.  As a contributory factor in the death he found that there had been inhalation of blood due to facial injuries.  The deceased had sustained severe internal injuries and fractures of many of his ribs due to blunt force to the trunk.  A metal gas cylinder was found near the body, and in Professor Crane's opinion the curvilinear marks on his face and head were consistent with this cylinder having been used vertically as a battering ram to inflict injury.  The internal injuries were consistent with the cylinder having been dropped horizontally from a height on top of the recumbent body of the deceased.  
A witness who lived across the alleyway from the bar,  Patrick Bannister, gave evidence about what he had seen and heard.  His second floor bedroom overlooked the alleyway, almost directly above where the attack on the deceased took place.  He was wakened from sleep at a time which he estimated as having been after midnight by the sound of shouting from two male voices in the alleyway.  He said that one had a loud, deeper voice than the other, and evidence was given that Fegan had a notably deep voice.  He thought that the man with the deeper voice was trying to calm down the other man, who seemed to be out of control.  He was saying words to the effect "He's had enough, leave him alone", while the other was screaming and shouting a bit.  He heard thuds as if someone were being punched and kicked.  He said that he heard the man with the deeper voice say to the other man "Johnny, leave him alone".  He was prepared to accept that the name might have been "Danny", the appellant's name, but as he gave this piece of evidence in response to a leading question about the name its value is reduced and in cross-examination he adhered to his recollection that he had heard the name as "Johnny".  He also heard the name "Colum" used repeatedly.  
Mr Bannister then got out of bed and saw two men standing at a skip in the alleyway.  He could see kegs and crates of bottles and the shape of what looked like somebody lying down beside the crates.  The light was very poor, however, and he could not be very sure.  One of the figures standing appeared to him to be much larger and fatter than the other (the Crown made the case that he was Fegan).  He saw the large man start to move up the alleyway, then the witness closed the curtains and returned to bed.  After that he heard the man with the deeper voice shout "Stop it, he's had enough" and something like "Leave him alone, he's had enough, don't touch his head or you'll kill him".  The other man then said what he thought was "Colum, get up, Colum.  If you don't get up I'm going to kill you".  At some stage he heard a noise like a beer keg being dropped, with a thudding noise and then the metallic sound of it hitting the ground.  This happened quite a few times.  He heard a woman's voice at a later stage, but it could have been later in the night after he had been asleep again.
Other witnesses living nearby heard the noise of what sounded like beer kegs or gas cylinders being dropped.  Maria McMahon thought that she heard the voices of three men.  One said "Leave him alone, relax", then a little later she heard one shouting "Get up, get up".  She heard names called which sounded like "Johnny" and "Alan".  The Crown suggested that what she in fact heard was "Danny" and "Colum".
The forensic evidence supported the proposition that the base of the gas cylinder had been in contact with the body of the deceased.  Smears of blood were found on the appellant's trousers and splashes on his shoes which matched that of the deceased and did not come from the appellant himself.  There were paint fragments on the appellant's coat corresponding to the paint on the cylinder found close to the body.  As he worked as a part-time barman in Goodfellas Bar these could have got on to his clothing in the course of his work.  Their presence is accordingly consistent with the Crown case but not probative of it. Several fragments of paint indistinguishable from that on the cylinder were found on Fegan's sweater, and the appellant's counsel relied on this as showing that Fegan could well have been the aggressor in the incident and not the appellant.
The appellant was interviewed by the police, but denied any involvement in the death of the deceased.  He claimed that he was extremely drunk on the evening in question, and other evidence tended to show that he was in a fairly advanced state of intoxication.
The Crown proposed to call Fegan as a witness, to prove that the appellant had been the sole aggressor in the incident and that Fegan had tried to restrain the appellant from further assault on the victim.  Fegan did not attend court, although he had been summoned, and the Crown sought the leave of the court (in the absence of the jury) to read in evidence a statement made by him under the provisions of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988, on the ground that he did not attend to give oral evidence through fear.  The learned trial judge refused the application, as he was not satisfied that his absence was through fear and not because he might himself have been implicated in the death or might have been friendly with the appellant and wished to avoid damaging his case.
The case accordingly proceeded without Fegan's evidence.  After discussion and agreement with the appellant's counsel Crown counsel stated to the jury simply that Fegan was to have attended as a prosecution witness and that every effort had been made to secure his attendance but he had not attended.  No reference was made to the application to have his evidence read or the ground on which it had been based.  The appellant did not give evidence nor did he call any witnesses on his behalf.
 In the course of his summing up to the jury the judge enumerated the persons who had been in the bar on the night of the incident and referred to the fact that the deceased was almost a stranger, one of the persons least known to those who were in the bar.  He went on:
"One of the questions that you might have to ask yourselves, members of the jury, is was there a cover up by some or any of the people; if so, do you think that it may have been through misplaced loyalty?  Do you think that people would want to play the role of informer or witness and put a person down for murder, who may be a workmate, a friend or an employee?  Those are all matters that you will have to weigh up in your minds.

You are people who have come from different parts of the community; you come from different jobs, different circumstances and different backgrounds but with all of the common sense of twelve people."

In a passage a little later he mentioned the suggestion emanating from the appellant's counsel (which Crown counsel and the judge regarded as having been in breach of the spirit if not the letter of the agreement as to what would be said about Fegan's non‑attendance at the trial) that there was forensic evidence linking Fegan with the deceased and his rhetorical question "Is it any wonder that he did not turn up?" and went on to say :
"It is not for me to tell you other reasons there may be for Mr Fagan not turning up other than the fear of the finger being pointed at him.  You use your own common sense in relation to that.  I would remind you of Mr Fagan's background and his record."

Before the judge completed his summing up the appellant's counsel complained to the judge about his invitation to the jury to think of reasons for themselves why Fegan did not turn up, especially in the light of the fact that a form of words had been agreed to inform them that Fegan had not attended to give evidence.  He submitted that they should not be encouraged to speculate about the reasons in the absence of evidence.  
When completing his summing up the next day the judge stated as follows to the jury:
"Before I finish my directions to you as the judge in this trial I want to state a few points of legal importance.  Now, first as to Patrick Joseph Fagan or Ted Fagan as he's been called, Mr Gallagher on behalf of the accused has said:  Is it any wonder that Mr Fagan has not given evidence for the prosecution, suggesting that he was involved in the murder, having regard to the forensic evidence, and such other evidence as you have heard, and that Mr McCullough was not.  And you will give that submission such weight as you consider that it merits, based on your own common sense.  If you're satisfied beyond a reasonable doubt by the evidence presented to you that you've heard that the accused Daniel McCullough is guilty of murder or manslaughter, the fact that Mr Fagan is not also in the dock would not justify you in finding Daniel McCullough not guilty, that would be a breach of your oath as jurors.  Therefore, if you were satisfied beyond a reasonable doubt that the accused is guilty of murder or manslaughter, you have a duty to find so, find that as a verdict.

Now, I suggested to you last evening that apart from the reasons advanced by Mr Gallagher for Mr Fagan's absence, there might be other reasons which you using your common sense might consider as explaining the non appearance of Mr Fagan.  I now consider that I was wrong to do so.  You would [be] embarking on conjecture or speculation and that might lead you to conjecture or speculation as to evidence he might have given.  The point is that he has not given evidence and we have no - there's no evidence before you as to why he has not turned up, and therefore you would [be] conjecturing or speculating if you thought why has he not turned up, subject to the point which Mr Gallagher has raised.  The point is that he has not given evidence and do not speculate or conjecture about what evidence he might have given.  None of us knows.  Do not therefore speculate, just say to yourselves:  Did he not give evidence for or against the accused and don't try to think up what he might or might not have said; deal with the evidence that you have heard and only the evidence you have heard."

Appeal against Conviction
The appellant raised a number of matters in his notice of appeal, but at the hearing before us Mr Gallagher QC for the appellant relied only upon one of them.  He argued that the judge was wrong in suggesting to the jury that they should use their common sense in determining why Fegan did not attend to give evidence at trial.  By making this suggestion he was, counsel submitted, virtually inviting them to suppose that Fegan was keeping out of the way because of friendship with the appellant, in order to avoid damaging his case.  Such a suggestion was inconsistent with the case put forward by the Crown in the application to have his statement read, which was that he was in fear of someone, probably the appellant or his associates.  The judge was quite right to tell them the next day that they should not speculate about the reasons for a witness's absence, and if he had given them this direction in the first place it could not have been criticised.  Mr Gallagher submitted, however, that the judge's suggestion had caused such harm to the appellant's case that it could not be put right by his correct direction the following day.  If the defence had had any inkling that the suggestion might be made that Fegan's absence was due to his friendship with the appellant, they could have dealt with the possibility in cross-examination.
We have considered carefully the passages to which Mr Gallagher referred in the judge's charge to the jury and we do not agree with his submission that irretrievable damage was done by his suggestion that the jury could use its common sense.  We would accept that it is generally better not to invite or allow a jury to speculate on the reasons for a witness's absence if it has not been explained in the course of the evidence. In the present case the circumstances of the agreement about what should be said concerning Fegan's absence were somewhat unusual, and it remains arguable in our view whether those circumstances justified the judge's comment when the appellant's counsel had sought to suggest that his absence was because of his implication in the death of the deceased.  We do not have to decide this, however, for we are satisfied that if it could be said that the judge's comment was incorrect his subsequent correction was sufficient to remove any unfairness from his charge.  When one looks at his earlier brief comments in a long summing-up and at his pointed redirection just before the jury went out to consider its verdict, it seems to us that any irregularity in the judge's directions had been put right.  We accordingly do not consider that the appellant's grounds of appeal have been made out and we dismiss his appeal against conviction.

Appeal against Sentence
It appears to us that the only basis on which the jury could have found that the appellant was not guilty of murder but guilty of manslaughter was that they were not satisfied that he formed the necessary mens rea to kill the deceased or cause him grievous bodily harm, because of his drunken condition.  The learned judge did leave the issue of provocation to the jury, but, as he said himself in sentencing, they can hardly have regarded that as a "viable" issue.
It seems clear from his sentencing remarks that the judge proceeded on the basis that the appellant was the one who was wholly or mainly responsible for inflicting upon the deceased the injuries from which he died.  He stated, quite correctly in principle, that his drunken state was of limited value in excusing the crime.  Concerning his propensity to violence, the judge said:
"In the course of interview with police he said that several times a week, two or three times a week since his separation from his wife, he had become as drunk as he was on the night in question.  I regard him therefore as a person who is an extremely dangerous man, liable to have a vicious and violent outburst of temper, liable to use violence as a consequence and, therefore, a menace to society in this part of the world and I approach my sentencing from that point of view."

He accordingly imposed on the first count a sentence of 13 years' imprisonment.
Mr Gallagher's grounds of criticism of the sentence were that (a) the judge did not have a sufficient basis in the verdict of the jury to conclude that the appellant was the prime mover in the attack rather than one who was a minor player in the joint venture in which Fegan took the main part, a necessary finding to justify such a heavy sentence, and (b) the sentence was on any basis manifestly excessive even for a case of manslaughter of this kind.
On the first ground he argued that the verdict itself did not contain anything from which the judge could determine what view the jury took of the part which the appellant had played in inflicting the injuries.  He did not attempt to catechise the jury on the basis for their verdict, in our view wisely, and it would not have been appropriate to hold a Newton hearing,  since the evidence had all already been heard.  He had to determine for himself on the evidence given the degree of the appellant's participation in the attack on the deceased.  Mr Gallagher argued that on that evidence he was not justified in concluding beyond reasonable doubt that the appellant was the prime mover, since there was significant evidence which tended to implicate Fegan as the man who carried out the attack.
We are unable to accept this argument.  The forensic evidence is in our opinion consistent with the judge's view of the appellant's complicity.  Mr Gallagher relies upon the paint flakes upon Fegan's sweater as showing that he was the one who handled the cylinder, but the forensic witness Miss Stella McCrossan gave her opinion that the presence of those flakes was consistent with Fegan's having attempted to restrain the appellant physically from continuing the attack.  The presence of smeared and splashed blood on the appellant's shoes and trousers tended to show, on Mr Logan's evidence, that the appellant had been close to the deceased when blood was projected, as a result of his being kicked or having the cylinder dropped on him.  The evidence of Mr Bannister was to the effect that the man with the deeper voice (Fegan) was attempting throughout the episode attempting to restrain the other, who appeared to be out of control.  On these facts we consider that the judge was fully justified in approaching his sentence on the basis that the appellant was the man who was the prime mover in the attack on the deceased.
Nor do we consider that he was wrong in categorising the appellant as a violent and dangerous man against whom the public required protection.  It is true that he did not have any previous convictions for offences of violence, but on the evening in question he had already had a row with his girlfriend Bronagh Trainor and had violently attacked Athina Neofitou.  He told the police in interview that he had regularly been drinking heavily since the death of his wife and we think that the judge was entitled to take the view that the appellant had violent propensities, which could lead to the repetition of violent attacks when he was in an advanced state of intoxication.
On the quantum of sentence, Mr Gallagher brought to our attention a series of decisions in the Court of Appeal in England which tend to show that a lower range is generally accepted as proper for comparable cases of manslaughter.  He rightly accepted that, as we have constantly stated, it is not profitable to cite such cases as exact comparisons by reference to which the court should calculate the appropriate sentence in a mechanistic manner.  It is proper, however, to look at the trend of reported decisions to establish the approximate range of sentence normally regarded by appellate courts as appropriate for the type of case which is under consideration.  It has, we think, to be recognised that the range in the cases cited to us was between two and seven years, the latter in R v Silver and Gosling (1982) 4 Cr App R (S) 48 being in respect of a fight in which the victim had been knocked down and the assailants then proceeded to kick him in the head.  We are mindful, moreover, of the observation of Watkins LJ in R v Philips (1985) 7 Cr App R (S) 235, 237 that a sentence of seven years is usually passed for a very grave case of manslaughter of a very different kind from that which was before the court, where the appellant knocked the victim down with his fist and he struck his head on the pavement, sustaining fatal injuries.
Counsel placed some reliance upon R v Hodgkinson [1997] 1 Cr App R (S) 146, in which the appellant's plea of guilty to manslaughter was accepted by the Crown and the court on the basis that he had been too drunk to form the necessary specific intent to found a charge of murder.  The judge who sentenced him to ten years' imprisonment observed that –
"the law recognised that those who did not intend the serious consequences of their acts, whether in drink or otherwise, must be dealt with differently from those who intended the consequences."

The Court of Appeal referred to the series of previous cases which counsel cited to us and held that the sentence, even for a bad case, was out of  line with the tenor of those cases, substituting a sentence of five years.  
There was no discussion in the Court of Appeal in R v Hodgkinson of the approach which a sentencer should take in a case where the defendant did not form the necessary specific intent through voluntary drunkenness, so that his offence is reduced to a lesser crime, and the relation between such a case and the line of authority represented by R v Majewski [1977] AC 443.  It was held by the House of Lords in the latter case that self-induced intoxication will not afford a defence to offences where a specific intent does not have to be proved.  In such cases the effect of drink or drugs on the mind of the accused is to be ignored in deciding upon his guilt.  It is, of course, well established that a defendant cannot rely upon his voluntary drunkenness as a mitigating factor in respect of sentence:  see, eq, R v Bradley (1980) 2 Cr App R(S) 12, 13, per Lord Lane CJ.  It seems to us that in a case such as the present, where the intoxication negatived the specific intent, the accused should be sentenced as if he had intended to commit the acts which caused the death of the deceased, knowing what he was doing, but not appreciating their consequences.  In this way his intoxication is taken into account in affording him a defence to murder, but is then disregarded in sentencing him for manslaughter.  
When one considers the case in this way, it is clearly a much more serious offence than the reported cases involving a violent brawl which went wrong.  We would not ourselves be as strongly influenced as the court in R v Hodgkinson by comparisons with the series of reported cases, in which the heinous quality of the acts constituting the attack was rather lesser.  We must approach this case on the basis that the appellant must be punished for the nature and quality of his acts, the only element lacking being his ultimate intention to kill the deceased or inflict grievous bodily harm.  We therefore consider that the judge was fully justified in regarding him as a violent and dangerous man from whom the public requires protection.  Having said that, however, we do consider that the sentence of 13 years was above the range which might properly be imposed in such cases, even after a contest.  Taking all the factors into account, we think it right to reduce the sentence to one of 10 years.  The appeal will be allowed and the sentence reduced accordingly. 

	IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

	_____

	THE QUEEN

	v

	JAMES DANIEL McCULLOUGH

	_____

	JUDGMENT

	OF

	CARSWELL LCJ

	_____