Scottish High Court of Justiciary Decisons

LORD KEITH .—[After directing the jury that they must first be satisfied that Cairns met his death as the result of an injury sustained by a bayonet held or wielded by the panel]—Assuming that you hold that Cairns so died, consider next the circumstances in which he received the injuries from which he died. You have three eye-witnesses who have given evidence; there were Moffat and M'Nulty, and there was the accused himself. The learned Advocate-depute has given you the details of that evidence, and I do not want to worry you with repetition, but I think it is proper that I should, at any rate, read to you the notes that I have made of what those three witnesses said upon the crucial matter of how the injuries were sustained by this man.

Moffat said this:

"Cairns swung round with the hammer and tried to hit Doherty with it. He looked mad."

That is to say, Cairns looked mad. "He swung the hammer over his shoulder and missed Doherty by a little. Doherty hit him on the head with the bayonet." That I take to be the wound on the top of the head, referred to by Mr MacDonald for the accused. Then he says that M'Nulty gave Doherty a bayonet; that is, before Doherty hit Cairns on the head, with the bayonet, M'Nulty had given him a bayonet, saying "Defend yourself with this." Doherty, after having struck Cairns on the head, moved off, and Cairns followed up and made another swipe with the hammer, according to Moffat's evidence. "Doherty pointed the bayonet at Cairns and, I think"—that is what Moffat says—"and, I think, pushed it forward. Cairns continued forward and fell on one knee. Blood came from his head. He fell to the floor, saying ‘Give me a hanky.’ Before this he had said ‘You mad bastard, Doherty, my eye is pouring out of my head.’" Moffat says Doherty got out of the way when Cairns swung the hammer for the first time.

That is Moffat's account of what happened; here is M'Nulty's account. He says, "Cairns swiped at him"—that is, at Doherty—"with the hammer." Remember, M'Nulty was the man who brought the bayonet to this place. "I gave Doherty a bayonet and said ‘Defend yourself’ He could not defend himself without the bayonet. Cairns swiped again after this; Cairns was going mad. Doherty hit Cairns on the head." He says, above the right eye. That must be through misrecollection, because there is no evidence that I can recall of an injury above the right eye, but that is what he said, "Doherty hit Cairns on the head above the right eye. He only hit one blow. His head started to bleed there above the eye." I do not know whether what M'Nulty is talking about is that injury to the eye which ultimately killed Cairns, or whether he is talking of some other injury, perhaps the blow on the top of the head, but he is not very clear about that. "Cairns said, ‘You are a mad bastard.’ I heard him say nothing about his eye. Doherty struck a cutting blow. I saw only one blow. Doherty gave him a hanky. Cairns fell down. We took him out of the store unconscious."

That is, perhaps, you may think, not a very precise account of what happened, but the evidence is for you to consider, because you are the masters of the facts. I think you will probably have no difficulty in holding that the injury to the eye was certainly not caused by any cutting blow but was caused by a piercing or thrusting blow, but I read you the evidence of what I have taken from M'Nulty as M'Nulty wishes to put it. It may be you think he was wishing to be rather more favourable to the accused, Doherty, than Moffat, because he says he only saw one blow, whereas Moffat, you will remember, speaks to the two blows, first of all the blow on the top of the head and then the second blow which he thinks was caused by a thrust of the bayonet on to the eye.

When we come to Doherty himself, his account is this:

"Cairns turned and swiped at me with the hammer. I ducked out of the way. M'Nulty handed me a bayonet to defend myself. I was afraid. He looked mad. Cairns was coming at me; he was pretty close; he was walking, holding the hammer in his right hand. I turned and hit him on the top of the head with the bayonet. He made a run at me. I put up the bayonet, and he either ran or walked"

—I am not quite sure which—"right on to it."

Nobody has suggested that Cairns met his death by accident, in other words, that there was no intention at all on the part of Doherty to do anything but ward Cairns off, and that there was no conscious thrust made by Doherty at Cairns, off, and that there was no conscious thrust made by Doherty at Cairns, but Doherty's evidence certainly might suggest that he was not really intending to use the bayonet on Cairns and that Cairns ran on to the bayonet. Of course, if that were so, it would put quite a different light on this case, and it is a point which, I think, you may wish to consider, but, of course, you will keep in mind the evidence of Moffat, which does not really fit in with that suggestion, and you will keep in view that the accused Doherty, while giving his evidence, no doubt wished to minimise as much as possible his part in this unfortunate incident. Also, you may think that it is unlikely that a man would run on to a weapon and receive an injury in the place in which Cairns did receive the injury, namely, at the eye. That would mean that the bayonet would have to be held fairly high up, not, perhaps, quite the natural position for holding a thing to keep a man off. You may think the bayonet would be held further down. It is a point for you to consider, whether you think it really is the case that Doherty only aimed one blow at Cairns, namely, the blow that hit him on the top of the head, or that he not only aimed that blow but also aimed a thrusting blow which entered the eye of Cairns and ultimately killed him. You will keep in view the evidence of the three witnesses, Moffat, M'Nulty and Doherty himself, as to how this particular injury to the eye was caused, and you will consider carefully whether you think it was caused by some thrust made by Doherty himself, it might be in an attempt to ward off some attack—I am going to say something about that in a moment—but you will consider whether the injury was caused by some thrust aimed by Doherty or whether it was, as Doherty himself suggests, a running on to the bayonet by this man Cairns.

It was said by Doherty himself that he had no intention of killing Cairns. I have no doubt that is perfectly true, and I think you may well think yourselves that he had no intention of killing Cairns. That is not the question. If a man uses a lethal weapon against another man and injures him, and the man dies as a result of that injury, intention is really neither here nor there; you have done a reckless thing by striking a man with a lethal weapon, and, if he dies, the person who strikes the blow is guilty, at least, of culpable homicide. In some circumstances it may be murder. In this case the charge is a charge of culpable homicide, and the question of intention is really neither here nor there in that connexion. It is a question of the reckless use of a lethal weapon producing the death of another man, and that in law is culpable homicide.

Now we come to the point that has really been put before you, and that is that Doherty acted in self-defence. Self-defence has been very fairly and fully put before you both by the Advocate-depute and by Mr MacDonald for the accused, but it is my duty to state what the law of the matter is with regard to self-defence, and, although there may be some repetition in this, it will, at any rate, refresh your minds, and it is a duty that I cannot avoid.

If the defence of self-defence is held to be established, that results in the complete exculpation of the accused, that is to say, the accused is held to be not guilty of culpable homicide. That is the result of holding self-defence established, but you have got to consider very carefully the limits of this doctrine of self-defence. It is my duty in the first place to consider whether there is evidence at all on which you might hold that self-defence could be established. I have had considerable difficulty in this case in deciding whether this was a matter that I should leave to you, but, in the whole circumstances of the case, I think there is evidence on which you will have to consider this question of self-defence and to decide whether you think the defence has been established, subject to such directions as I am now about to give you upon the law of the matter.

Let me remind you first of all of the limits of self-defence in a case of this kind. First of all, there must be imminent danger to the life or limb of the accused, to the person putting forward this defence; there must be imminent danger to his life and limb; and, secondly, the retaliation that he uses in the face of this danger must be necessary for his own safety. Those are two fundamental things you will keep in mind, that there is imminent danger to life and limb and that the retaliation used is necessary for the safety of the man threatened. You do not need an exact proportion of injury and retaliation; it is not a matter that you weigh in too fine scales, as has been said. Some allowance must be made for the excitement or the state of fear or the heat of blood at the moment of the man who is attacked, but there are limits or tests that are perfectly well recognised and which will help you to understand this doctrine by way of illustration. For instance, if a man was struck a blow by another man with the fist, that could not justify retaliation by the use of a knife, because there is no real proportion at all between a blow with a fist and retaliation by a knife, and, therefore, you have got to consider this question of proportion between the attack made and the retaliation offered. Again, if the person assaulted has means of escape or retreat, he is bound to use them. If he has these means, then it is not necessary in self-defence to stand up against the other man and in retaliation use a lethal weapon against him. He could defend himself by escape, which is really just another way of ridding yourself of the danger. He could escape or retreat, and then no necessity arises to retaliate by the use of a lethal weapon or in any other way, and, accordingly, that is another of the things in this case that you have got to consider, and to consider very carefully.

Just let me apply the law, as I have endeavoured to indicate it, to the circumstances of this case. Consider the application of those rules here. First of all, it is undoubtedly favourable to the accused that he was attacked or threatened by a hammer, because I do not think you will have any doubt at all that a hammer was a very dangerous thing to be threatened or attacked with, and, therefore, that is a feature favourable to the accused. If the accused had been cornered and had had a bayonet in his hand, it might well have justified a thrust with the bayonet in his self-protection to defend his own life, or to defend himself from very serious injury from the hammer, that is, if the accused were cornered and there was no other method open to him of saving his life or limb. But in this case the circumstances are not all that favourable. First of all, you know he was handed this bayonet by M'Nulty and told to defend himself, and that suggests something—it is for you to consider, it is not for me, but I am only putting this forward as a matter you have got to keep in view—that it suggests something of the nature of a duel, and that is not permissible; you cannot start up a duel with another man and then say, "But I killed him or injured him in self-defence." He had friends round about him whom you may think—and it is for you to consider—whom you may think might have helped him or dissuaded Cairns or disarmed Cairns, and again you may think he had a means of retreat. He had an open door to this stair behind him, the stairs down to the yard, and certainly there does not seem to have been any attempt to make an escape by the door, or to get behind his companions Moffat and M'Nulty, or anything of that sort. Those are circumstances in this case to which you will have to apply your minds, and you will have to decide whether in the light of all those circumstances this was a proper case of self-defence, in which the accused really had no other alternative in his own safety but to thrust at Cairns with the bayonet in the way which has been spoken to in evidence, if you think it is established in evidence that some such thrust was made. It is quite true that you may think that the accused was not altogether to blame, that he was provoked and that he used this bayonet in the heat of the moment. That is perfectly true, and I recognise that, but it is not provocation that has been put forward here; it is self-defence. Provocation is a very different matter, and it really is the provocation that has made this a case of culpable homicide and not of murder; the provocation in that sense has been taken into account, and, of course, provocation would be taken into account in the matter of sentence if you thought that self-defence did not apply here and that the accused is guilty of culpable homicide. In that case, of course, the whole circumstances in which this assault was made by the accused, in which those injuries were caused, the whole question of provocation, heat of blood, and that sort of thing, are proper matters for others to take into account, but you are not really here to consider the question of whether the accused was provoked. I recognise that it may well be said that he was provoked, but the question is, Do you think that he was acting in self-defence?

I have endeavoured to try and indicate to you as clearly as I can the rules of self-defence and their application to the facts of the case here, and it is for you to decide whether in the whole circumstances you think this defence of self-defence applies.

Just let me say one concluding word to you. The onus of establishing the guilt of the accused is on the Crown, it is their duty to satisfy you beyond reasonable doubt that the accused is guilty of the charge made against him. If you are satisfied in the whole circumstances of the case, and subject to such indications and directions as I have given you, if you are satisfied that the accused acted in self-defence according to the standards that I have endeavoured to explain to you, of course you would acquit the accused. If you are left in some reasonable doubt, because here again it is for the Crown to satisfy you beyond reasonable doubt, if you are left in reasonable doubt as to whether he acted in self-defence, again you would acquit him. If you think that what happened was not necessary in self-defence and that it was a case just of acting under provocation and in the heat of the moment, you would convict the accused, subject always to your being satisfied, of course, as I said at the outset, that this man died as a result of an attack by a bayonet held by the accused. [His Lordship then referred to matters with which this report is not concerned.]