R v Melusi Brian Madaweni

For an appeal seeking to introduce psychiatric evidence and raise a new partial defence, the evidence must be sufficiently compelling to justify departing from the ordinary rule that matters which could and should have been placed before the jury are not advanced for the first time on appeal. Evidence of an abnormality of mental functioning is insufficient for diminished responsibility unless it provides an explanation for the defendant’s conduct, including the killing. Where the proposed report does not link the disorder to the offence, the conviction appeal will not be arguable. Mental disorder may nevertheless be relevant to sentence even where diminished responsibility is not established.

Following a jury conviction for murder at Derby Crown Court and a life sentence with a 25-year minimum term, the applicant sought extensions of time, leave to appeal against conviction and sentence, and admission of psychiatric and other fresh evidence. The proposed conviction appeal relied on diminished responsibility under section 2 of the Homicide Act 1957, which had not been raised at trial. The trial defence was self-defence and lack of intent. The sentence application relied on mental disorder as reducing culpability. The central issues were whether the fresh evidence should be admitted and whether it made either appeal arguable.

The court refused leave to appeal against conviction. It did not finally determine the application concerning sentence.

1. Conviction and fresh evidence. Professor Qurashi’s reports provided a fuller basis for diagnosing an abnormality of mental functioning causing substantial impairment, but the court found little or no difference between that diagnosis and Dr Kennedy’s earlier opinion. The critical issue was whether the abnormality provided an explanation for the applicant’s conduct, as required by section 2(1)(c) of the Homicide Act 1957.
2. Diminished responsibility. The report did not identify a basis for concluding that the applicant’s mental state substantially impaired his ability to understand the nature of his conduct or to exercise self-control. The court surmised that the report may have relied on impaired rational judgment, but that was not the issue raised by the defence. The trial case was self-defence and lack of intent, and there was no case that the applicant’s conduct resulted from delusional thinking about the deceased or his companions.
3. Exceptional admission of new material. Applying the principle in R v Erskin [2009] EWCA Crim 1425, the court held that the case was not sufficiently compelling to justify introducing a defence or evidence which could and should have been placed before the jury. Counsel were entitled to accept Dr Kennedy’s opinion, and pursuing diminished responsibility would have conflicted with the applicant’s instructions and potentially undermined the trial defence.
4. Sentence. Dr Kennedy’s opinion should have been before the sentencing court. The applicant’s mental disorder was arguably relevant to sentence and could have significantly affected the minimum term. The court directed a rolled-up hearing to decide admission of the further psychiatric evidence, leave to appeal against sentence and the extensions of time. A further report was to address culpability and mental illness, including mental illness as a statutory sentencing factor under Schedule 21 to the Sentencing Act 2020.

1. Crown Court at Derby: On 15 February 2023, following a jury trial, the applicant was convicted of murder. On 20 February 2023, he was sentenced to life imprisonment with a 25-year minimum term.
2. Court of Appeal (Criminal Division): The court refused leave to appeal against conviction and directed a further rolled-up hearing concerning fresh evidence and leave to appeal against sentence: [2025] EWCA Crim 1427.