Hill v R.

Fresh evidence should be received under section 23 only where the interests of justice justify doing so. The court will not ordinarily permit an appellant, without a reasonable explanation, to advance after trial a new account in order to run a different defence on appeal. A defendant bears the burden of establishing diminished responsibility on the balance of probabilities. Substantial reduction of responsibility is a broad question of fact and degree; medical evidence informs, but does not determine, it. Voluntary alcohol cannot contribute to the mental abnormality required for diminished responsibility. Alcohol does not defeat the defence where an abnormality would independently have substantially reduced responsibility.

The appellant was convicted of murder at Birmingham Crown Court in 1994 after killing an occasional drinking companion. His first appeal was dismissed in 1995.

The Criminal Cases Review Commission referred the case on the basis that, following later authority, provocation may not have been properly considered. The appellant then sought to rely on fresh evidence that he had suffered childhood sexual abuse and experienced a flashback when the deceased allegedly assaulted him. He also sought leave to advance diminished responsibility based on alleged brain injury, alcohol and sudden awakening from sleep.

The central issues were whether the fresh evidence should be received and whether it could render the conviction unsafe.

1. Appeal dismissed; application for leave to appeal on diminished responsibility refused. The court refused to receive the appellant’s new account of childhood sexual abuse and an alleged flashback. Although such material would have been admissible and relevant to the gravity of provocation under AG for Jersey v Holley [2005] UKPC 23, there was no reasonable explanation for its omission at trial. If true, it was central to the appellant’s asserted reason for killing and would have been material to both intent and provocation. His prior positive account of the foster father and the prolonged failure to mention a persistent flashback meant that the new account was not capable of belief.
2. The court applied the principle that fresh evidence should not ordinarily enable a defendant to change his account after trial in order to advance a different defence on appeal, particularly in the absence of the original witnesses and jury. The proposed provocation ground therefore failed.
3. On diminished responsibility, the appellant bore the burden of proving, on the balance of probabilities, an abnormality of mind which substantially reduced his responsibility for the killing. That was a broad issue of fact and degree. Medical evidence was relevant but did not decide it. Where the issue arose through fresh evidence, the question was for the Court of Appeal.
4. The proposed medical case could not establish diminished responsibility. Any effect of alleged organic brain injury depended, on the expert’s refined case, upon voluntary alcohol consumption and waking from deep sleep. Under Deitschmann [2003] UKHL 10, voluntary drinking cannot contribute to the required mental abnormality. There was also no evidential basis for confusion on awakening: the appellant’s own account showed awareness of what was occurring, and the stage of sleep was speculative.
5. Even assuming the medical expert correct on disputed matters, the evidence could not afford a ground for allowing the appeal. The court therefore declined to receive it.

• Court of Appeal (Criminal Division): Following a Criminal Cases Review Commission reference, the court dismissed the renewed provocation appeal and refused leave to appeal on diminished responsibility.
• Court of Appeal (Criminal Division): The appellant’s first appeal against his murder conviction was dismissed on 19 May 1995.
• Birmingham Crown Court: The appellant was convicted of murder on 6 July 1994.