APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
OPINION OF THE COURT
THE LORD JUSTICE GENERAL
NOTE OF APPEAL AGAINST CONVICTION
ROBERT ROSS SANDERSON
HER MAJESTY'S ADVOCATE
Appellant: P. McBride, Hamilton; Balfour & Manson
Respondent: Mulholland; Crown Agent
1 June 1999
The appellant is Robert Ross Sanderson who was convicted of a charge of attempted murder of a Mrs Fowler and of the murder of David Allison at the High Court at Airdrie. He has appealed against the conviction on the charge of murder.
At his trial the appellant had lodged a special defence of incrimination in respect of the murder charge and in that special defence he had named Mrs Fowler, the complainer in the attempted murder charge, as having committed the murder of the deceased.
The grounds of the appeal are that the trial judge misdirected the jury on the evidence of the special defence of incrimination. It is also said that he failed to explain to the jury what was meant by incrimination and to tell the jury what evidence the defence relied on to establish the special defence.
From the report of the trial judge it emerges that the appellant and Mrs Fowler had been carrying on a sexual relationship with one another over a period of months. The appellant had also been associating with another young lady and on the occasion in question he had spent the evening with that other lady. Mrs Fowler had gone out on her own to a public house where she had met the deceased. She had too much to drink and she and the deceased eventually ended up at her house where they went to bed together. In the early hours of the morning the appellant, having seen the other lady home, decided to visit Mrs Fowler to have sex with her. He went to her house where he found Mrs Fowler and the deceased asleep in bed together.
It appears that, according to the version of events which the jury must have accepted, the appellant attacked the deceased and Mrs Fowler using hockey sticks which were in the bedroom. Mrs Fowler was badly injured and when the ambulance arrived it was impossible to resuscitate the deceased.
In evidence at the trial the appellant said that, when he saw Mrs Fowler and the deceased in bed, he made a remark - at which point the deceased got up and attacked him. A fight followed. He said also that he saw Mrs Fowler striking the deceased with a hockey stick. He grabbed the stick from her and struck her once with it. His position at the trial was that he had inflicted none of the many injuries found on the deceased, although he could not account for those injuries. He had, however, according to his evidence, been downstairs for a time and at the trial counsel for the appellant argued that the injuries could have been inflicted by Mrs Fowler during the period when he was telephoning.
As can be seen, the appellant's special defence of incrimination on the murder charge was to the effect that Mrs Fowler had attacked the deceased. That was the version he gave in evidence. The appellant also had a special defence of self defence in respect of the charge of attempted murder of Mrs Fowler against his conviction on which he has not appealed.
In charging the jury the trial judge dealt with both special defences together and he said this:
"You will remember that at the beginning of the trial you heard read out to you what were called special defences. Do not be misled, ladies and gentlemen, into thinking that these are something that the accused requires to prove. That is not the case. It is simply that there are some lines of defence, in this case self defence and incrimination, there are some lines of defence of which advance notice must be given so that the Crown are not taken by surprise. Once all the evidence has been led these documents are of no practical effect. Once all the evidence has been led it is for you to decide whether any such suggestion of self defence or of incrimination have been discounted by the Crown. If you have any reasonable doubt about that then, as I have said, you must give the benefit of such doubt to the accused. The onus of proof, ladies and gentlemen, is on the Crown and on the Crown throughout to prove its case against the accused beyond reasonable doubt."
The criticism of the direction is said to be that the trial judge directed the jury to decide whether any suggestions of self defence or incrimination had been discounted, whereas he ought to have told them to consider whether the evidence led by the defence in respect of either special defence raised a reasonable doubt as to the guilt of the appellant.
It is fair to say that in addressing the Court today Mr McBride did not place great emphasis on this particular aspect of the appeal. In our view there is no substance whatever in this criticism of the direction in the trial judge's charge, for it is plain that the trial judge first, rightly, tells the jury they must consider whether the Crown has discounted the defence of incrimination and then goes on precisely to explain that, if they have any reasonable doubt, they must give the benefit of that doubt to the accused.
It is true that the trial judge does not explain the meaning of incrimination but he was of course addressing the jury at a point when both the Advocate Depute and the defence counsel had addressed them.
The trial judge did not consider it necessary in the circumstances of this particular case to go over the evidence either for the Crown or for the defence. Mr McBride, while not disputing that that was a possible approach for a trial judge to take in some cases, submitted that, where there was a special defence of incrimination and the accused had given evidence in support of that special defence, the trial judge required to give some account of that evidence.
In our view there is, and can be, no such rule. This was a case where the trial judge, looking at the circumstances overall, decided that he was content to leave the jury to deal with the matter of the evidence in the light of the approaches outlined in the speech for the Crown and for the defence. He was entitled to adopt that approach in this case and, that being so, he was under no obligation to rehearse the evidence relating to the special defence of incrimination which was plainly the evidence given by the appellant himself the previous day.
The jury had in particular been directed by the trial judge that, if they took the view that the appellant's evidence raised a reasonable doubt in their minds, then that was the end of the case. That was of course the correct direction on that particular matter.
Having regard to all these circumstances we are satisfied that there is no merit whatever in these grounds of appeal and we shall accordingly refuse the appeal.