Lord Justice Clerk
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE LORD JUSTICE CLERK
CONTINUED NOTE OF APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE,
Appellant: McBride, Drummond Miller
Respondent: G Bell, Q.C., A.D.
3 February 1999
On 1 October 1996 the appellant was found guilty by a majority verdict of the jury on a charge of culpable homicide of Andrew Paul Healy in a public house in Cumbernauld on 9 May 1996. The only ground of appeal against conviction which has been argued before this court is that there was insufficient evidence to identify the appellant as the person who struck the fatal blows. In this case the charge was that the appellant had assaulted the deceased and had repeatedly stabbed him and struck him on the body with a knife or similar instrument, with the result that he was so severely injured that he died later in hospital.
The evidence which was led at the trial demonstrated that the appellant was a regular in that public house and that the deceased, who was also there on the occasion in question, was the worse for drink and behaving as a pest. The first witness to whose evidence we were referred was Alexis Blair. She stated that the deceased was quite drunk and that he had been annoying the appellant at the bar up beside a monopoly machine. She also described the appellant as grabbing a key, after which there was some sort of fight between him and the deceased. She gave evidence that the appellant punched the deceased a couple of times in the stomach and she described that as being with a clenched fist and not an open hand. She then described him as pushing the deceased away, may be by the shoulders. The deceased fell to the ground beside a pool table. She said that there was no one else with the two of them. After the deceased had fallen to the ground, a few people who had been playing pool came over and took him to the toilet. She saw no sign of injury to him at that time. The appellant left the bar more or less straightaway. She saw the deceased again when the paramedic took him out. He was then seen by her to be covered with blood in the area of his stomach. She confirmed that she had seen no sign of injury when the deceased was annoying the appellant. She said the deceased had been a considerable pest to others that night. In cross-examination she said that the struggle between him and the appellant, before the appellant shoved him away, was fairly brief. She had seen no sign of injury or a knife before the deceased hit the floor. So far as that witness is concerned, Mr McBride, who appeared on behalf of the appellant, said that that evidence provided a basis for excluding the use of a weapon so far as the appellant was concerned, and he drew attention, in particular, to the fact that the witness had described him as using a closed fist and not the open hand. He also relied on the fact that the witness had given evidence that there was no sign of injury on the deceased, although he had gone to the floor, and she had not seen blood on him for perhaps five or ten minutes thereafter.
The second witness to whose evidence we were referred was Christopher Hackett. In his evidence he described the appellant as leaning against a machine in the public house. The deceased was leaning into him and engaging him in conversation face to face. The witness said he looked to see if the barmaid or barman was available. As he turned round he saw the appellant push the deceased away. The deceased fell down near the pool table, and that was it as far as he was concerned. There were other people about. He had not been aware of any indication of an argument between the two men. He described the pushing away as a "fair straight shove in the chest and just once". The deceased hit his head on the pool table. After falling he did not move to get back up again. The appellant, after a couple of seconds or so, started walking out of the door. He described what he did thereafter. He went to speak to the appellant who said that the deceased had been a pest all night and that he had had enough and was going up the road. It may be noted that this witness evidently had told the police that he had seen the appellant punching the deceased more than once, but he did not give that evidence in court and he gave reasons for changing his story. As far as this witness is concerned, Mr McBride emphasised that he had not seen the appellant punching the deceased and, furthermore, he had not seen the deceased with blood on him immediately after the incident.
The third and final witness, whose evidence we are concerned with, was James Speedie. He gave evidence that he heard a thud. He did not see the deceased fall to the ground, but saw him lying flat on his back. There was a small spattering of blood on his T-shirt. He had not seen any sign of blood when the deceased was standing in the vicinity of a heater, so far as he remembered. He went up to the deceased and bent over him. Someone said that he should be taken into the toilet. He lifted his shirt up and saw a wound in the middle of what he described as his chest. He said he was the first person to reach the deceased. He was not aware of anything to cause the injury and he said that he could not say what link there was between this injury and the thud that he had been aware of.
Mr McBride on behalf of the appellant emphasised that in this case there was a total absence of any evidence as to a weapon being seen. The only evidence that had been given as to what the appellant held was the evidence given by Alexis Blair, who said that she had seen him with a car key and a glass. As we have pointed out already, when she saw him punch the deceased it was with a clenched fist.
In these circumstances Mr McBride submitted that there was insufficient evidence to identify the appellant as the person who was responsible for the serious injuries which the deceased had suffered. He was found to have sustained two wounds to the front of his body, according to the medical and pathology evidence.
We consider that this appeal against conviction is without merit. On the evidence before them the jury were plainly entitled to reach the conclusion that the injuries suffered by the deceased were suffered by him in the bar in the presence of the witnesses to whom we have referred. There was some suggestion in the course of the trial that the injuries might have befallen the deceased after he had been removed into the toilet, but there was absolutely no evidence to support that suggestion. Having regard to the positive evidence given by the witnesses, so far as it went, the jury were plainly entitled to reach the conclusions that it was in the bar itself that the injuries had been sustained. So far as who was responsible was concerned, there is plainly nothing to suggest that the deceased was involved in any confrontation with anyone else than the appellant himself. Each of these witnesses have described what they were aware of. The evidence of Blair goes as far as to provide evidence that the deceased was apparently punched in the stomach by the appellant. The jury were well entitled to reach the conclusion that what in reality happened was that a knife was used. It was followed immediately by the fall on the ground which was observed in one way or another by the other two witnesses. It is true that neither Blair nor Hackett were aware at that stage of any injury. On the other hand the evidence of James Speedie, who was first on the scene, provides direct evidence that injury was immediately obvious. Mr McBride suggested that it could not be taken that what Mr Speedie heard, namely the thud, could be connected with what was spoken to by the other witnesses and, in particular, Blair when she spoke of the deceased's fall to the ground. We are unimpressed by this argument. The jury were perfectly entitled in the circumstances to connect those two pieces of evidence together and accordingly Mr Speedie's evidence provides direct evidence as to injury sustained by the deceased at the time when he fell to the floor in the bar.
In these circumstances the appeal against conviction is refused.