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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Holley v AG [2003] JCA 013 (17 January 2003) URL: http://www.bailii.org/je/cases/UR/2003/2003_013.html Cite as: [2003] JCA 013, [2003] JCA 13 |
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[2003]JCA013
COURT OF APPEAL
17th January, 2003.
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Before: |
R.C. Southwell, Esq., Q.C., President; Sir de Vic Carey, Bailiff of Guernsey; and P.S. Hodge, Esq., Q.C. |
Dennis Peter HOLLEY
-v-
The Attorney General
Appeal by Dennis Peter HOLLEY against conviction at a criminal assize on 12th July, 2002, on:
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1 count of: |
Murder. |
The application for leave to appeal placed directly before the plenary Court without first being considered and determined by a Single Judge.
Advocate J.C. Gollop for the Appellant;
D.E. Le Cornu, Esq., Crown Advocate.
JUDGMENT
THE PRESIDENT:
1. This is the judgment of the Court. On 13 April 2000 Dennis Peter Holley killed Cherylinn Ann Mullane, with whom he had had a long-standing relationship, at her flat on the Elysée Estate in St Helier. He killed her with seven strong blows to the head and neck with an axe.
2. Holley's first trial was in June 2001. Holley pleaded not guilty to the one count of murder. He admitted that he had killed Cherylinn Mullane. The only issue before the Royal Court was whether he was provoked by her in such a manner that the verdict should be one of manslaughter, not murder. On 21 June 2001 the jury unanimously brought in a verdict of guilty of murder. Holley was sentenced to life imprisonment.
3. Holley appealed to this Court with leave of the Bailiff who had presided at the first trial. On 25 October 2001 this Court upheld the appeal and quashed the conviction of murder. This Court ordered a retrial.
4. Holley again pleaded not guilty to the one count of murder. He was due to be tried a second time in the week of 8 April 2002. That trial was aborted following the discovery that two of the jurors had connections with Cherylinn Mullane.
5. The second trial ultimately began on 8 July 2002. Again the only issue before the Royal Court was that of provocation - whether by reason of provocation the verdict should be one of manslaughter and not of murder. The jury unanimously brought in a verdict of guilty of murder. Holley was again sentenced to life imprisonment.
6. Holley applied for leave to appeal against conviction on 22 July 2002. On 16 September 2002 it was directed by this Court that his application be placed directly before the plenary Court. Accordingly, this Court has heard the application as if it were an appeal with leave.
7. In the first judgment of this Court of 25 October 2001, the factual background to this case, and the legal framework within which the appeal is to be considered, were set out at some length. We do not propose to lengthen this judgment further by repeating the relevant matters of fact and law set out in the earlier judgment of this Court. Accordingly we state only that paragraphs 2 - 13 inclusive and 16 of the earlier judgment are to be treated as incorporated in this judgment.
8. There has, to the benefit of Mr Holley, been a helpful continuity of his representation. Advocates Gollop and Juste appeared for Holley at the first trial, Advocate Juste alone on the first appeal, and Advocates Gollop and Juste at the second trial and on the present application for leave. This Court wishes to pay a deserved tribute to both Counsel for their conduct of the two trials and the present application, and to Miss Juste for her conduct of the first appeal.
9. For the prosecution Crown Advocate Whelan appeared at the first trial and on the first appeal, and Crown Advocate Le Cornu at the second trial and on the present application.
10. We next consider in turn the seven grounds relied on on Holley's behalf on the present application.
Ground 1(a)
11. This ground was that the Deputy Bailiff, who presided at the second trial, failed to give a complete or sufficient direction to the jury on the defence of provocation.
12. As this Court stated in its judgment on the first appeal, the relevant legal provision concerning provocation is in Article 4 of the Homicide (Jersey) Law 1986 (see paragraph 3 of the earlier judgment). For the purposes of this application, Article 4 involves these issues for the jury to determine:
(i) The factual, or "subjective", issue whether Holley was in fact provoked to lose his self-control and to kill by things said or done by Cherylinn Mullane.
(ii) The "objective" second issue which involves the jury forming a judgment whether the provocation was enough to make a reasonable person do what Holley did, taking into account everything done and said by Cherylinn Mullane. This second issue contains two elements:
(a) what was the gravity of the provocation;
(b) how would a reasonable person have reacted.
13. For the purposes of Ground 1(a) we are principally concerned with issue (ii) (b) - how would a reasonable person have reacted. This involved the jury forming its judgment as to the effect of the provocation on a reasonable member of the community, a judgment which the jury would reach by setting a standard of self-control of the reasonable person in the circumstances of the case.
14. In setting this standard and applying it to the circumstances of a particular case a jury has to take some account of the particular characteristics of the defendant, distinguishing, for example, between provoked men and provoked women, and between adults and children (for example, the 15 year old boy in Reg v Camplin [1978] AC 705 HL (E)).
15. The difficulty in cases involving questions of provocation leading to killing is how far the judge should go in directing the jury to take account of particular characteristics of the defendant. In Reg v Smith (Morgan) [2000] 3WLR 654; [2001] 1 AC 146; HL(E) the House of Lords by a majority went further than before in holding that a characteristic of the defendant, such as the mental condition consisting of severe clinical depression from which Morgan Smith suffered, was a type of characteristic which the jury was entitled to take into account. A passage from the speech of Lord Hoffman has been agreed by Counsel for the prosecution and the defence to contain the relevant guidance for the Royal Court in giving directions to the jury in cases of the present kind. The full passage was quoted in paragraph 13 of the earlier judgment of this Court, and we do not quote it in full again. It suffices for the purposes of this judgment to say that Lord Hoffman
(i) stressed the general principle that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up;
(ii) went on to emphasise that the jury should be directed on the lines that, if it thinks that there is some characteristic of the defendant which affected the degree of self-control which the community could reasonably have expected of him, and which it would be unjust not to take into account, then the jury is at liberty to give effect to this characteristic;
(iii) the judges should no longer invoke, in their directions to juries, the formula of the reasonable man equipped with an array of unreasonable but eligible characteristics.
16. It was clear from the evidence of Mr Holley himself, viewed in the light of the helpful evidence of the experts to which we will shortly turn, that he had a number of characteristics or personality traits which were potential candidates for special consideration by the jury. (1) The first of these was chronic alcoholism, which had begun in Holley's early teens, and with limited periods of remission when he was in prison or persuaded to try to stay off drinking alcohol, had continued ever since. (2) He had an avoidant personality and always tried to avoid confronting any problematic situation. (3) He had a depressive personality, though the experts seem to have agreed that he did not have the illness of clinical depression. (4) He was dependent on the women to whom he was from time to time attached, and above all on alcohol. (5) He had an anxious personality, being anxious about his own effect on other people, and about his own ability to cope with difficult situations, and was unduly prone to think of himself as responsible for any problems which arose in his relationships with others.
17. The three experts who gave evidence were Dr Wilkins (called by the prosecution, and who is a consultant psychiatrist with the Berkshire Health Care Trust, and works in general psychiatry with day to day contact with those who are dependent on alcohol), and two called by the defence, Dr Beck (a chartered clinical psychologist), and Professor Eastman (who is both a psychiatrist and a barrister, Professor of Psychiatry and Law in London University, head of forensic psychiatry at St George's Hospital Medical School, and a Honorary Consultant Forensic Psychiatrist in the National Health Service, and has had long experience with alcohol dependents). They agreed that Holley had all five of the characteristics or personality traits we have described. There was, however, a difference of emphasis between them. Dr Wilkins considered that traits (2) to (5) above were commonly to be found among chronic alcoholics. In his view the killing by Holley was solely due to Holley's alcohol intake, and would not have occurred in the absence of such alcohol intake. Professor Eastman and Dr Beck, on the other hand, expressed the view that, in the absence of the actual alcohol intake on the day of the killing, the killing could have occurred anyway due to the four other personality traits already described. Professor Eastman expressed the strong opinion, backed by World Health Organisation literature, that Mr Holley's serious chronic alcoholism was a disease. As Professor Eastman emphasised, Mr Holley's intake of alcohol was involuntary (an important point), so that from waking to sleeping he was driven to drink alcohol in so far as he was able to fund this.
18. We have summarised the medical expert evidence briefly, so as to show that on the basis of the defence experts' evidence there was a case to go to the jury that Mr Holley's chronic addiction to alcohol was such a characteristic as the jury was (in accordance with Lord Hoffman's speech) entitled, if the jury thought it appropriate, to take into account in assessing the reaction to provocation of the kind to which Mrs Mullane subjected Holley. Dr Wilkins's evidence did not support this beyond a limited point, and his evidence also needed to be taken into account by the jury.
19. We turn next to consider how the Deputy Bailiff put this vital aspect of the case to the jury, keeping in the forefront of our analysis the burden on the prosecution to prove that Holley was not provoked as the defence contended. Early in the summing up the Deputy Bailiff directed the jury that, in this relevant context, it
"should consider whether there was anything about the defendant's own particular characteristics which reduced his power of self-control and, if there was, whether it provides a sufficient excuse for what he did."
This was an appropriate way to start to deal with the direction which Lord Hoffman had indicated in Smith (Morgan).
20. The Deputy Bailiff then listed briefly the characteristics in this way:
"[The defence] say he was a depressive, he had strong feelings of worthlessness, he avoided problems, he was a very dependent person both on women and on alcohol, he suffered from anxiety and he was an alcoholic."
As an introduction to the second part of the jury's analysis of the case on provocation, this was appropriate.
21. But unfortunately the Deputy Bailiff then qualified that statement by saying this:
"But I must tell you this; the fact that a person is drunk or under the influence of alcohol at the time of the killing and as a result he is provoked more easily than if he were sober, that is not something to be taken into account in his favour."
It seems to us that at this point, as later in the summing up, the Deputy Bailiff made a mistake. On the one hand, in the ordinary course if a criminal offence is committed because a person is drunk, that is no defence to a charge of the offence, and, on the contrary, the influence of alcohol is regarded as an aggravating factor. But on the other hand, in the special circumstances in which a defence of provocation is put forward, the judge and the jury have to distinguish between two entirely different situations: the first is where the killer is simply drunk and this is no answer to a charge of murder, and in particular gives rise to no arguable defence of provocation; but the other situation is where the killer is a chronic alcoholic (and suffers from the disease of alcoholism), in which situation the jury is to be directed that this is a potentially relevant characteristic of the killer, and therefore one to be considered in the context of deciding whether or not the killer was provoked so as to satisfy Article 4 of the Homicide (Jersey) Law 1986. What the Deputy Bailiff was, at this stage of his summing up, directing the jury was that the jury should leave entirely out of account the principal particular characteristic on which the defence relied. This was a clear misdirection in our judgment.
22. The Deputy Bailiff went on to deal with many other aspects of the case, in the course of which he rightly kept in the jury's minds the need to have regard to Holley's special characteristics when deciding "whether in the circumstances of this case Holley showed the degree of self-control which society is entitled to expect from a man with his characteristics." He went through, in no little detail, the events preceding and leading up to the killing, and had reached this point when the trial was adjourned for lunch. After lunch he summarised the main points made by the prosecution in relation to those events. He then turned to the evidence of the three experts, ending with references to Dr Wilkins's evidence that Holley killed Mrs Mullane entirely because he had drunk so much alcohol during the day. The Deputy Bailiff ended his discussion of the expert evidence with this passage:
"You may conclude, members of the Jury, it is a matter for you, that both of these individuals were pretty drunk that night. Now I have already directed you that the fact that a man is drunk, or under the influence of drink, and therefore less able to control his temper is no defence to a charge of murder. So, if you are satisfied that the only reason that the defendant lost self-control in the face of this provocation was because of the drink as Dr Wilkins thinks, then you will find him guilty of murder."
As already indicated in relation to the similar passage earlier in the summing-up, this did not present the case correctly to the jury. The Deputy Bailiff failed properly to explain to the jury that chronic alcoholism (particularly when it has reached the stage of a disease, and the sufferer drinks alcohol involuntarily from waking to sleeping) is a relevant characteristic which the jury were entitled to take into account in assessing Holley's reaction to the provocation. This was again a misdirection.
23. The Deputy Bailiff then ended his summing up with a brief summary of the broad issues which the jury had to determine. In this summary he did not deal with the relevance of alcohol or alcoholism. But he introduced for the first time, at this late stage of the summing up, the concept of the "reasonable man" which Lord Hoffman had advised judges to avoid. The sentences in which this concept was raised were as follows:
"The Prosecution say that there are no special characteristics about Holley which justify special consideration. They say you should ask yourself whether a reasonable man would react to what Cherylinn Mullane said by killing her with an axe as did the defendant. They answer, well, of course, such a reasonable man would not have behaved in this way and you should therefore find Holley guilty of murder. They furthermore say that if it was the drink that he had consumed that day which caused the loss of control that is no excuse and you will still find him guilty. But the defence say that Holley is not an ordinary man. They say he has these characteristics and traits which mark him out from the ordinary man and make him more susceptible to provocation of the nature which Cherylinn Mullane, they say, offered that evening. Well, it is for you to decide whether you agree."
Given that the Deputy Bailiff had twice directed the jury that Holley being under the influence of drink was "no defence to a charge of murder", this further passage again removed, from the range of personal characteristics which the jury might consider, the disease of chronic alcoholism from which Holley suffered.
24. Further, the late references to the concepts of "a reasonable man" and "an ordinary man" (though the concept of "a reasonable man" is referred to in the Jersey Homicide Law, as well as in the English statute) could have been confusing to the jury, as Lord Hoffman had pointed out in Smith (Morgan) in the passage which had been agreed as the guideline for the Royal Court in this case. It seems clear that the jury could not have succeeded in understanding, contrary to what the Deputy Bailiff had directed, that chronic alcoholism was a potentially relevant characteristic of Holley's personality which the jury should include in its considerations.
25. The conclusion of this Court is that
(i) Chronic alcoholism such as Holley suffered from (which Professor Eastman stated to be a disease, and which resulted in the drinking of alcohol being involuntary on Holley's part) was a relevant characteristic which ought to have been put to the jury to consider.
(ii) To exclude the taking and influence of alcohol completely in this case as an irrelevant characteristic of Holley was a serious misdirection of the jury.
(iii) It follows that once again this Court has to set aside the conviction of Mr Holley on the charge of murder.
26. We add that we have not been referred to any authority in Jersey or England and Wales dealing with the relevance of this kind of chronic alcoholism to the issue of provocation as an answer to a charge of murder. We have, however, been referred to cases in relation to diminished responsibility, in particular Reg v Tandy (1988) 87 Cr App R 45. In that case the killer had been drinking voluntarily and it was held that such voluntary drinking of alcohol could not go to establish the defence of diminished responsibility under the Homicide Act 1957 of England and Wales. But in Tandy (obiter) the English Court of Appeal indicated that that defence could be available if the killer was a chronic alcoholic and her drinking (p. 49) "had become involuntary, that is to say she was no longer able to resist the impulse to drink". Though the defences of diminished responsibility and provocation are distinct and depend on different elements, we consider that the analogy is sufficiently close to support our conclusion that Holley's chronic alcoholism, which amounted to a disease and which caused him to drink alcohol involuntarily, was capable of being a relevant personal characteristic for the purposes of the defence of provocation in this case.
27. We have no little sympathy for the Deputy Bailiff in dealing with the rather complex issues raised by the defence of provocation in this case, not least perhaps because it might be said that he did not receive from counsel all the help he ought to have received. But we add our regret that the guidance which this Court tried to spell in its earlier judgment in this matter was not sufficiently taken into account.
28. It follows that, as we have already indicated, on Ground 1(a) alone the conviction of murder cannot stand. But as all the seven grounds have been fully argued, we propose to deal with the other six briefly in this judgment.
Ground 1(b)
29. This ground is closely allied to Ground 1(a). It is contended that in the summing up the Deputy Bailiff did not provide the jury with sufficiently detailed guidance as to the characteristics which, the defence said, made Holley more susceptible to the provocation by Mrs Mullane. The brief references in the summing up are contrasted with the 118 pages of transcript of the oral evidence of the three experts.
30. The ways in which the evidence of the three experts was dealt with during the trial were by no means satisfactory. The experts were in agreement to no small extent. In pre-trial case management arrangements should, if possible, have been made for an agreed document to be prepared setting out briefly the aspects of the case on which the experts were agreed, and the issues between them in so far as they were not agreed. Such a document would have much assisted the jury in understanding the impact on their decision-making of the specialist expert evidence. We consider later the closing speech of counsel for the prosecution. Here it suffices to say that the attempt by prosecuting counsel to belittle the experts (particularly those called for the defence) and the relevance of their evidence was inappropriate.
31. In our judgment the references in the summing up to the characteristics of Mr Holley and to the expert evidence dealing with those characteristics were not adequate guidance to the jury concerning the central issues in the trial. In retrospect it can be seen that it might have been better to take time overnight, or over the weekend, so that the judge could prepare with the help of all three counsel a fuller and more helpful direction as to (i) the matters on which the experts were agreed, (ii) those on which they disagreed and the extent of their disagreement, and (iii) the relevance of the expert evidence to the issues which the jury had to decide.
Ground 2
32. The defence contend that the Deputy Bailiff gave an incomplete or insufficient direction to the jury on the relevance of the alleged cumulative provocation of Holley by Mullane. In particular the defence argue that a direction on the cumulative effect of provocation should have been included in the opening directions on the law, and should not have been left, as it was, to almost the end of the summing up, leading to counsel for the prosecution to seek a hearing in the absence of the jury late in the summing up, so as to make certain that the judge would be dealing with the cumulative effect of continuing provocation.
33. We agree that this aspect of the defence case should have been covered in the directions as to the law with which the Deputy Bailiff opened his summing up. Much help in this respect could be derived from the standard directions published by the Judicial Studies Board of England and Wales. In fact the Deputy Bailiff did refer subsequently more than once to the alleged continuing provocation. However, in doing so, he did not bring together the evidence of previous provocation which was contained in (inter alia) the agreed schedule of incidents, the evidence of Holley himself and the evidence of some other witnesses, so as to present this important aspect of the defence case clearly to the jury. This could more readily have been achieved if more time had been taken before the summing up began. Though we are critical of the lack of such a presentation, this is not a ground on which by itself the appeal would have been allowed.
Ground 3
34. The evidence before the jury showed that Holley made untrue statements (i) immediately after the killing to the neighbour Mrs Swanston, and (ii) when he arrived in the custody suite at the police station. The making of these untrue statements could have been relevant to an issue, if it had arisen, whether Holley had killed Mullane. But there was no such issue. The only issues for the jury arose out of the alleged provocation. The untrue statements were of minimal relevance, if any, to the provocation issues, and therefore the right direction to be given to the jury was to ignore these statements. An additional and powerful reason for the jury to be directed to ignore such statements was that they were made at times when Holley was in the grip of a strong emotional reaction to what he had done, as the video recording of what happened when he arrived in the custody suite showed most clearly, and when Holley plainly had little notion of what he was doing or saying.
35. The question whether the Deputy Bailiff should give a "Lucas direction", based on the English case of R v Lucas (1981) Q.B. 720; 73 Cr. App. R 159 CA, was raised by him before the summing up in relation to the untrue statements made by Holley in the custody suite. Fortified with the views of counsel the Deputy Bailiff gave a partial direction as to the corroborative effect of such statements. No such direction was given in relation to the marginally more relevant statements made immediately after the killing.
36. The defence contended before this Court that the direction which the Deputy Bailiff gave was incomplete or insufficient. In the view of this Court it would have been appropriate for the jury to have been directed to ignore the statements. However, by itself this defect in the summing up would not have been sufficient ground for setting aside the conviction.
Ground 4
37. Under this ground the defence contended that the Deputy Bailiff misdirected the jury on the relevance of remorse to the provocation issues, and in particular wrongly linked remorse to the issue concerning lies. This ground is linked closely to Ground 3.
38. When the Deputy Bailiff was, in his summing up, dealing with the immediate aftermath of the killing, he referred at some length to the brief discussion between Mr Holley and Mrs Swanston, placing some stress on both untrue statements made by Holley and on the alleged lack of remorse. We agree with the defence that this was not an appropriate way to deal with the immediate aftermath of the killing, both because the jury should have been directed not to place reliance on the untrue statements, and because the suggestion made to the jury that
"you may wish to ask yourself whether these were the actions of a man overcome with remorse at what he'd done, or whether they were the reactions of someone trying to escape the consequences of what he'd just done."
needed to be put in the context of Mrs Swanston's evidence as to Holley's physical condition at that time, and of his physical and mental condition when some hours later Holley arrived at the police station custody suite. But this point by itself was certainly not of sufficient significance to justify setting aside the conviction of murder.
Ground 5
39. This ground was in effect an omnibus ground covering all the previous grounds with which we have already dealt. Some additional points were made by the defence, including (i) the arguable lack of balance in the references to the evidence of Mr Anderson, Mr Richardson and Mr Costello; and (ii) the way in which the Deputy Bailiff dealt with Holley's right to silence, which it was argued was put in too confused a way in the sentence
"This means that it cannot by itself provide any additional support for the Prosecution's case." (our underlining)
We agree that in both these respects these matters might have been better put, but by themselves would not justify setting aside the conviction of murder.
Ground 6
40. This ground consisted of an attack on the closing speech for the prosecution.
41. The duties of prosecuting counsel are onerous. They were well described in England in the report of a committee chaired by Farquharson J in which it was emphasised that prosecuting counsel is not in the same position as counsel appearing for an accused or for a party in civil proceedings. Prosecuting counsel must, on the contrary, act as a "minister of justice".
42. The guidelines provided by the Farquharson Committee have now been revised and published with effect from February 2002, and are to be found in Archbold on Criminal Pleading, Evidence and Practice. There are in addition the standards applicable to criminal cases published by the General Council of the Bar of England and Wales as part of the Bar's Code of Conduct, which are also to be found in Archbold, and also are based on the Farquharson guidelines. It would be useful for those who serve in the Island as Crown Advocates to be supplied with copies of these documents, and in due course with versions of them edited to take account of the particular circumstances in criminal justice practice in this Island.
43. Because the duties of prosecuting counsel are onerous ones, it would not be appropriate to extend this judgment with a detailed analysis of the closing speech by counsel for the prosecution. It will suffice to make these general observations:
(i) The speech reads too much as a speech on behalf of one party to a bitterly fought civil dispute, and too little as an objective presentation of the case for the prosecution.
(ii) There was inadequate balance, for example, in the strong descriptions of Holley as a violent man who assaulted Mullane frequently, which were not placed in their proper context with references to Mullane's continual drinking, and her verbal and physical assaults on Holley.
(iii) The descriptions of the experts and their evidence were inappropriate, in some respects inaccurate and unduly disparaging. Since the expert evidence was central to the issues at the trial, and Professor Eastman, for example, was a psychiatrist of long and distinguished experience, it was the Crown Advocate's duty to present the prosecution case on the expert evidence with due balance, due reference to those issues on which the experts were agreed and those on which they disagreed, and without seeking to belittle the experts called for the defence and the significance of their evidence to the decisions the jury had to reach.
(iv) It is to be regretted that, though in this Court's earlier judgment the role of prosecution counsel was referred to, and the Crown Advocate who appeared at the first trial was gently criticised for inappropriate remarks about the experts, lessons were not learned from this for the purposes of the second trial.
44. By itself the conduct of prosecution counsel would not have resulted in the conviction being set aside, but it is an additional factor which we take into account in our decision that the conviction cannot stand.
45. It has come to the attention of this Court, as a result of the Court's enquiry, that there were several hearings for the purpose of discussing (inter alia) the directions to be given to the jury in summing up, which hearings were held in the Deputy Bailiff's room, and were attended only by counsel, and in the absence of the defendant, Mr Holley. There is no official record of what was said at these hearings. But we have had the advantage of seeing transcriptions of the notes made by Advocate Juste of these hearings. As a matter of practice it would be more appropriate, we consider, for any such hearings, save in exceptional circumstances, to be held in the presence of the defendant unless the defendant wishes not to attend. Further, it is desirable that a proper recording is made of any such hearings in the same way as it is of the hearings at which evidence is adduced. The practice of the Royal Court could readily be changed. Such hearings could (as in English courts) take place in court, in the presence of the defendant (unless he or she wishes not to be present), and be recorded in the usual way so that, if required, a transcript can be prepared.
46. In the light of what we have said in this judgment, we give leave to appeal, we allow the appeal and set aside the conviction of murder.
