The Lord Justice Clerk
Lord Nimmo Smith
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE
GORDON JOHN REID
HER MAJESTY'S ADVOCATE
Appellant: McVicar; Balfour & Manson
Respondent: Di Rollo, A.D.; Crown Agent
20 April 1999
On 13 November 1997 the appellant was found guilty on a charge of murder. That charge was in the following terms:
"On 17 July 1997 at Wood Street, Catrine, you did assault Robert Pollock McIlvean, 'Robanne', Old Coach Road, Catrine, drive motor car registered number N915 ESD directly at him while he was standing on the roadway there and cause said motor car to strike him on the body and knock him to the ground, whereby he was so severely injured that on 18 July 1997 at Ayr Hospital, Dalmellington Road, Ayr, he died and you did murder him;
and you did commit this offence while on bail having been granted bail on 7 July 1997 at Ayr Sheriff Court."
The circumstances of this charge are set out for us in the report by the Trial Judge. He says that on the evening of the offence, the appellant on two occasions along with a companion, Mr Swegsda, paid a visit to some vacant ground overlooking the home of the victim, Mr McIlvean. Whether or not the appellant was drinking or watching the home of the deceased was not made clear, but certainly he and Mr Swegsda on the first occasion spent some time at Wood Street. On the second occasion they visited the location about 9.00pm. They decided to steal the Lada motor N915 ESD which belonged to the deceased. This car was parked in his garage, and because the gates at the exit to his property were partly closed, it would appear the appellant had some difficulty in opening these gates to permit the taking away of the said motor car. The result is that a certain amount of noise was made at the time the late Mr McIlvean and his wife were visiting a neighbour, Miss McColl, whose flat in Wood Street directly overlooked the entrance to the McIlveans' home. They heard the noise made by the appellant and Mr Swegsda and went to the window of their hostess to see what was happening. Mr McIlvean saw that the appellant was attempting to drive his motor car onto the roadway. He was very distressed by this since his car had been stolen on another occasion not long previously. He left the house he was visiting. To exit from this house onto Wood Street, he required to travel a short distance to the end of the block of flats and then emerge onto Wood Street. Mrs McIlvean, who was quite distressed by what was happening, continued to watch at the window. When her husband appeared the appellant was already driving the car along Wood Street along to where the deceased had emerged. The appellant was driving the car on his right-hand side of the road. The deceased crossed the road and attempted to stop the car by standing in its path and waving his hands. Instead of the appellant stopping, or at least attempting to swerve round the deceased, he accelerated and knocked him down causing the brain injuries from which he later died. A number of other residents from Wood Street observed this incident from the windows of their homes and gave evidence which, although it varied in detail, was unanimous in the view that the appellant had not made any effort to stop or avoid the deceased. The Trial Judge goes on to say that confirmation of the evidence of those eye witnesses came from a police officer, Constable Gordon McGregor of the Strathclyde Police Accident and Investigation Unit. He spoke to road marks he had observed and these included what he described as acceleration scuff marks. He was able to relate these to the Lada motor car by measuring them and also to relate the position of these marks to where the body had been found. The distance between these marks and the body were such that Constable McGregor was able to conclude that the Lada motor car had been accelerating at the time of impact. He was also able to relate the height of the bumper of the Lada motor car to certain leg injuries suffered by the deceased, and to conclude from the comparison that the motor car had been accelerating at the time of impact and not braking. There was medical evidence that the deceased died as a result of brain injury which could have been caused by the back of his head hitting the ground as he was knocked over by the car.
It was not in dispute at the trial that at the relevant time the appellant was driving the car and that it knocked down the deceased; and that he died as a result of the injuries which he sustained in that collision. In charging the jury, the Trial Judge left it open to them to decide whether this was in fact an accident. But, Mr McVicar who appeared today on behalf of the appellant frankly conceded that the true issue in this case was whether on the one hand the appellant was guilty of culpable homicide, or on the other was guilty of murder. In this case, there was no suggestion that there was insufficient evidence to entitle the jury to convict of murder and it is only in regard to one matter that it is maintained that the Trial Judge misdirected the jury. As framed in the ground of appeal, it is submitted that in giving the jury certain directions, "the Judge omitted to direct them as to how they should approach evidence given by both Crown and defence relating to the accused's conduct immediately after the incident in which the deceased died. Both Crown and defence led evidence of actings of the accused, both at the locus at this stage but then in driving away from the locus and in his conduct in the hours and days immediately thereafter. The Crown specifically invited the jury to consider the appellant's conduct immediately after the incident as evidence of his wicked recklessness, whereas the accused himself gave evidence that he had panicked. It is submitted that this is a material chapter of the evidence upon which the Judge should have specifically directed the jury and that his failure to do so is a material misdirection, constituting a miscarriage of justice." The passage in the charge to which this complaint is directed can be found on page 19 of the transcript. Having said to the jury at the foot of the previous page that it might well be that they would not find it possible to exonerate the appellant from culpability for the death of the deceased, the Trial Judge said this:
"If that's so the practical question for you would be did the manner in which Mr Reid drove at the time of this accident satisfy the grave test for murder as I have explained it to you or was it only enough to satisfy the less severe test of culpable homicide".
The evidence as to events after the incident to which reference is made in this ground of appeal is to the effect that the accused drove away without stopping and having visited a friend in Newmilns, he went with his passenger to Butlins Holiday Camp in Ayr, where they met two women and went to a dance. The evidence on the other hand given by the appellant was that he panicked.
From a reading of the grounds of appeal, it might be supposed that the complaint against the Trial Judge is that he failed to cover a particular chapter of evidence, namely the evidence of the Crown and evidence for the defence namely relating to the actions of the accused after the incident. It is, of course, well understood that the Trial Judge does not require to go over the entirety of the evidence and the extent to which he does so is a matter for his direction. Certainly, where a matter is of critical importance, it is important that he covers the evidence relating to that matter. However, as developed by Mr McVicar, the criticism of the charge adopted a different form. Mr McVicar's complaint was that the evidence which was founded upon by the Crown and the Crown's approach to that evidence involved their reliance upon something which was not relevant to the driving, and in particular not relevant to the intent of the appellant at the time. He referred us to passages in the transcript of the address by the Advocate depute to the jury. In particular, he cited a passage at which he asked the jury to consider what was the intent of the appellant at the time of the driving, and having referred to that period of time, he said that the matter did not stop there and that they should also look at what happened immediately afterwards. He went on to say then that the behaviour of the accused was not consistent with the behaviour of a person who had been involved simply in an accident. Instead, the appellant and his passenger went to a friend's home and then they went to Butlins to go dancing. In those circumstances, Mr McVicar suggested that the Crown were putting it to the jury that the accused had behaved in a callous way which demonstrated that not merely had he not been involved in a mere accident, but that his attitude at the time of the driving was such as to display a wicked recklessness in regard to the life of the victim.
The difficulty with the submission made by Mr McVicar as he developed it was that it is not supported by authority and indeed, is contradicted by it. Reference was made in the first place to the case of Halliday v HM Advocate 1998 SCCR 509. That was a case of murder in which it was held that evidence of what happened once the attack was over could properly be regarded as casting light on the attitude of the appellants at the time of the attack and as tending to show that they had been wickedly indifferent to the consequences of the attack. In this case, what was founded upon was the failure of the appellants to call an ambulance at the close of an attack. Instead they proceeded to wash their clothes. In the case of McDowall v HM Advocate 1998 SCCR 343, which was concerned with a contravention of Section 2 of the Road Traffic Act, it was held that the fact that immediately after the accident the appellant, the driver, showed utter disregard for the victim and drove with his bonnet up, was a factor which the jury were entitled to take into account along with his driving in the period before the accident when assessing his state of mind at the time of the accident. Mr McVicar suggested to us that there must come a time at which a line should be drawn, but frankly accepted that he was unable to point to any authority which demonstrated that there was a point beyond which evidence as to the attitude of the appellant could not relevantly cast a light on his attitude at the time when the offence was committed. In the light of those authorities, we are quite satisfied that the argument presented by Mr McVicar is not well founded and this appeal against conviction should be refused.