Scottish High Court of Justiciary Decisons

LORD JAMIESON .—…The crime with which the accused is charged is culpable homicide, and I think I can best help you by saying a word or two as to what that crime means. As its name implies, it is simply bringing about the death of another by a criminal act of culpa or fault. It differs from the crime of murder in this, that in murder there must either be an intent to kill or a reckless disregard as to the consequences of one's act. In culpable homicide these factors may be absent. It takes many forms, but you here are only concerned with death resulting from violence or assault, and I shall have to explain to you later what exactly I mean by assault. Violence may take many forms. It may be a savage attack causing physical injury resulting in death or it may be a very slight assault. If, having a grievance against a man, another gives him a push, although a slight push, and that knocks him over and he hits his head against, a kerb and dies, it may be culpable homicide, and it is no defence to the charge to say that a serious injury was not intended or that death was not in contemplation, and that in that sense the death was accidental. I am going to read to you what was said by one of our Judges, who was at one time Lord Justice-Clerk, in charging a jury. He said:

"That being so and life having been taken, it is clear that there must be a conviction, unless you are satisfied on the evidence that the taking of life was merely an innocent accident. It may be that those who offer violence, especially violence which is subject to be followed by death, have not had in view the taking of life. They, however, are not accidental in their use of violence. They are responsible for the violence they use, so far as the violence is concerned; and, if consequences follow which they do not anticipate or apprehend, they are also responsible for these consequences. One cannot say ‘I chose to exercise violence against a person against whom I thought I had a grievance, and it was merely accidental that a probable consequence of that violence followed.’"

Now the degree of violence that has been used, as I have told you, may be very slight, but if there was any violence or if there was any assault and death results from it, directly results from it, then the accused person is guilty of culpable homicide. The question of the degree of violence is not really a question for the jury. It is a question for the Judge, if the accused is found guilty, in considering what punishment is to be meted out. Nor is it any defence that the victim was an old person, an infirm person, or a person that suffered from a bad heart, and that if he had been young and healthy the consequences would not have happened. If a person commits an assault, he must take his victim as he finds him. It is not necessary that the death should result from physical injuries. If the result of the treatment that the deceased person has received has been to cause shock and that person dies of shock, then the crime has been committed. If a person is assaulted, although to a slight degree, but is put in fear of serious bodily injury and dies as a result, then the crime has been committed and the person who has committed the assault is guilty of it.

Now I have been talking about assault. Assault, in law, is in some ways a technical term. One talking in ordinary parlance about an assault is rather inclined to think of some serious violence being used, but that, in law, is not necessary. The learned Advocate-depute referred to a well-known book on Criminal Law, in which it is said that every attack upon the person of another is an assault, whether it injure or not; and then it gives an example, that even spitting upon another is assault. Later on it says, "Gestures threatening violence so great as to put another in bodily fear, whether accompanied by words of menace or not, constitute assault. That threatening language was used may be an element in estimating how far the fear of the person attacked was reasonable; but mere words cannot constitute an assault." So, when I speak about an assault, do not run away with the idea that it means something of a very violent nature. The same applies when I speak to you about violence. The matter was very well illustrated in a case to which the learned Advocate-depute referred me, where an attempt was made to rob a woman. Some force was used but there was no serious physical injury, but she had a weak heart and she died, I think it was a few days later. She died some time later from shock, and in charging the jury a very eminent Judge said this, "Anyone attacking a person with a view to robbery, and causing his or her death, was guilty of culpable homicide at the least. It was no defence at all that the victim was suffering from heart disease. Therefore, if they were of opinion that this woman died from the shock occasioned by the prisoner's criminal attempt to rob her, he was guilty, not merely of assault with intent to rob, but of culpable homicide."

Death, however, must result directly from the assault or from the violence used. It must be a direct result, although there may be factors operating such as a diseased heart, and when I speak of it being direct it need not necessarily be the direct result of physical violence, that is to say, the physical injuries received. If a person has been assaulted and there is violence used or if the victim is put in reasonable fear of his or her safety, reasonable fear of further violence, and is suffering from a bad heart which operates as one cause, and as a result dies from shock or emotional shock, as the doctors call it here, that would be enough. So, when you come to consider the facts, you should, I think, direct your attention to this: Did the accused strike the deceased woman? Do you hold that proved? If you do not hold that she was actually struck, did he molest her? Did he lay hands on her and, by his actings, did he put her in a reasonable dread of being attacked to such an extent as caused her to suffer from shock? And, if you find either of these, the other question you have to direct your attention to is this, Was her death a direct result of that?…

The jury unanimously found the panel guilty of culpable homicide as libelled, and he was sentenced to twelve months' imprisonment. He presented notes of application for leave to appeal against (1) his conviction and (2) his sentence. In the former his reasons of appeal included the following:—

"(4) That the presiding Judge at the trial, in his charge to the jury, misdirected or failed fully to direct them, inter alia, that the prosecution had to prove criminal intent or unlawful conduct on the part of the applicant before they could find the charge of culpable homicide proved against him."

The case was heard before the High Court of Justiciary on 15th January 1952.

LORD JUSTICE-GENERAL (Cooper)—The applicant was indicted on the charge that on 16th September 1951, on the Rhu-Garelochhead road, he did assault a woman named Annie Reid or Johnstone, did seize her and strike her on the face with his fists, and did kill her. Tried before Lord Jamieson and a jury, he was convicted unanimously and sentenced to twelve months' imprisonment.

The two grounds of appeal which have been maintained before us by Mr Bayne are the fourth and fifth of those stated in his grounds of application, the fourth being that the presiding Judge misdirected or failed fully to direct the jury that the prosecution had to prove criminal intent or unlawful conduct on the part of the applicant before they could find the charge of culpable homicide proved against him.

The very unfortunate story which has been unfolded to us is that of a naval petty officer under the influence of drink—I think to a serious extent—who believed (in my view without any justification) that a gipsy woman whom he encountered on this road had by some method unexplained obtained possession of 30s. belonging to him. There was evidence before the jury from four or five different witnesses that, acting under this confused belief, he struck her on one or more occasions; but, whether he struck her or not, there was ample evidence to satisfy the jury that he molested her, and apparently threatened her, and continued to do so over a distance of half a mile, in the course of which she was manifestly reduced to a state of considerable apprehension and fear, as evidenced by the lady witness who spoke to her and who intervened on her behalf, and as further evidenced by the fact that her husband and daughter departed in search of the police. The final stage of the deplorable occurrence was reached when the woman made an unsuccessful effort to escape the man's attentions by boarding a passing motor car, when he forcibly restrained her and pulled her out of the car, whereupon she collapsed and was found to be dead.

Whether or not the jury found that the blows were struck, as I think they were, there is no doubt at all that the only conclusion from the evidence is that, due doubtless to his drunken condition, the applicant seriously molested this woman for a prolonged period and in such a fashion as to be well calculated to induce great apprehension in the mind of any reasonable woman. Such being the background against which he eventually pulled her out of the car in which she sought refuge, I am unable to see what need there was for any presiding Judge specifically to inform the jury that they could not convict without proof that the acts were done with criminal intent or in course of unlawful conduct, because I cannot imagine what conceivable justification in law or in fact or in common sense could be assigned to the conduct proved against the appellant. My view is that the presiding Judge's charge was both adequate and clear and that no sufficient criticism can be directed against it.

[His Lordship then considered the fifth ground of appeal with which this report is not concerned.]

In the result, I move your Lordships that the attack upon the conviction fails.

LORD CARMONT .—I agree in all respects.