Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. Carvill [2005] ScotHC HCJAC_63 (27 May 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_63.html
Cite as: [2005] HCJAC 63, [2005] ScotHC HCJAC_63

[New search] [Help]

Her Majesty's Advocate v. Carvill [2005] ScotHC HCJAC_63 (27 May 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lady Cosgrove

Lord Marnoch

[2005HCJAC63]

Appeal No: XC801/03

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

NOTE OF APPEAL AGAINST CONVICTION

ISABEL VERONICA CARVILL

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant: M E Scott QC, Forbes; Balfour & Manson

For the Crown: McCallum AD; Crown Agent

27 May 2005

The conviction
[1] The appellant, her daughter Gemma Valenti and Isobel Black were tried at the High Court at Hamilton in May and June 2003 on charges of murder and of attempting to defeat the ends of justice. The appellant and Gemma Valenti were convicted in the following terms:

"On 11 July 2002 at 5 Abigail Place, Blantyre, you did assault Kenneth Nichol Brown Finnie ... and did punch him on the head and body, knock him to the ground, repeatedly kick him on the head and body, repeatedly jump and stamp on his head and body, strike him on the head with a bottle or similar instrument, repeatedly strike him on the head and body with a broken piece of plastic or similar instrument, strike him on the head and body with a glass or similar instrument, strike him on the body with a knife or similar instrument and you did murder him."

Isobel Black was convicted of attempted murder under deletion of the words "strike him on the body with a knife or similar instrument".

[2] We have already refused the appeal of Gemma Valenti (Valenti v HM Adv, 18 March 2005, unrepd). In the course of that appeal we refused leave to appeal on a proposed additional ground of new evidence. That evidence consisted of a letter written by the appellant, in which she exonerated Gemma Valenti and said that she herself had accidentally inflicted the fatal wound, and an affidavit by Gemma Valenti to the effect that after the trial the appellant admitted to her on several occasions that she had killed the deceased..

The evidence
[3] The deceased Kenneth Finnie was killed on the occasion of a party at the locus. The locus was the home of John Hamilton with whom the appellant had had a relationship. The company consisted of seven adults and five children. It included John Hamilton, the deceased, the appellant, Gemma Valenti, Isobel Black, Lillias McHardy and two other children of the appellant. In the course of the evening the deceased made lewd remarks to Gemma Valenti and Isobel Black. According to Lillias McHardy, he started to argue with the appellant and Gemma Valenti. The appellant then "went for him" and tried to get him out of the door.

[4] Although the evidence was confused and on some points contradictory, there was evidence entitling the jury to conclude that a fight then broke out in the living room between Isobel Black and the deceased and that it carried on into the kitchen. John Hamilton entered the kitchen and saw the appellant and Isobel Black punching the deceased in the face. At this point Gemma Valenti entered by the back door with a screwdriver in her hand. John Hamilton took the screwdriver from her and took it to the living room. At about this stage he saw the appellant pick up a knife from the kitchen floor and put it into a basin in the sink.

[5] The deceased then stumbled into the livingroom and fell to the floor. Blood was coming from his mouth. Three witnesses who were watching from a house across the road saw the three women attack the deceased by punching and kicking him and stamping on him. The deceased offered no resistance. He died on the floor. The cause of death was a single stab wound to the heart. He also sustained various lacerations and cutting wounds to his head and face, his jaw was broken in three places and a bone in his throat was broken. According to the pathologist, death would not have been instantaneous but would have occurred within four to five minutes of the stabbing.

[6] Two knives were found in the basin. According to the pathologist, the knife which the appellant picked up from the floor was the more likely to have inflicted the fatal wound. There was a mixture of blood and water in the basin. It contained traces of the DNA of the deceased. Blood spots found on the chest area of Gemma Valenti's tee shirt were consistent with her having inflicted the stab wound.

[7] Immediately after the deceased died, according to Lillias McHardy, Gemma Valenti repeatedly said "I've killed Kenny." All three women left the house along with Lillias McHardy and the appellant's children, and returned to the appellant's house. On the way, both Gemma Valenti and the appellant claimed to have inflicted the fatal wound. At her house, the appellant said that she thought that she had stabbed the deceased twice in the back and in the kidneys. That was inconsistent with the pathologist's evidence. According to Isobel Black's police statement, the appellant, Gemma Valenti and Isobel Black then washed the clothes that they had been wearing.

[8] All three accused gave tape-recorded interviews to the police. The appellant denied having been involved in the attack on the deceased; but at the conclusion of her interview, when she was asked to sign the tape box, she wrote on it "I, Isabell Carvill, did murder Kenneth Finnie." Isobel Black's interview was helpful to the appellant in two ways. She said that she had not seen the appellant attack the deceased but that Gemma Valenti told her that she had stabbed him.

[9] The Crown case was that Gemma Valenti struck the fatal blow and that the appellant was guilty art and part. The appellant and Gemma Valenti each lodged a special defence in which she incriminated the other. Gemma Valenti was the only accused to give evidence. She exculpated herself and incriminated the appellant. Counsel for Isobel Black led no evidence. Counsel for the appellant was given leave under sections 259 and 261 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) to lead evidence of the contents of Isobel Black's police statement.

Sections 259 and 261
[10] Section 259 of the 1995 Act provides inter alia as follows.

"(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied:

... (b) That the evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it."

Section 261 provides inter alia as follows.

"(2) Evidence of a statement made by an accused shall be admissible by virtue of the said section 259 at the instance of another accused in the same proceedings as evidence in relation to that other accused.

For the purposes of sub-section (2) above, the first mentioned accused shall be deemed -

where he does not give evidence in the proceedings, to be a witness refusing to give evidence in connection with the subject matter of the statement as mentioned in paragraph (e) of sub-section (2) of the said section 259; and
to have been, at the time the statement was made, a competent witness in the proceedings ... "

The charge
[11] In the course of his charge, the trial judge gave the jury directions on the evidential significance of Isobel Black's police statement. He said the following:

"However, where the co-accused wants to take advantage of something said by the first accused in a statement, then we do have our procedure whereby the contents of the statement may be allowed to become available to assist that accused, and that is what Mr Murray was referring to, that on behalf of his (sic) Isabell Carvill Mr Murray moved me outwith your presence to allow the statement in Isobel Black's police interview - the statements there - to become evidence in relation to the third accused Isabell Carvill, and I allowed that motion, and so the position now is the evidence to the contents of the police interview of Isobel Black is available as evidence for or against Isobel Black, and it is also available as evidence in relation to the third accused Isabell Carvill, but - and it is important to bear this in mind - it does not thereby become evidence in relation to the second accused Gemma Valenti. The position in relation to her remains as it was, that is to say, the statement made by the first accused Isobel Black outwith the presence of the second accused Gemma Valenti is not evidence in relation to Gemma Valenti. So, I hope that that complicated arrangement is understood by you."

His analysis of the case against the present appellant was as follows:

"I come now, ladies and gentlemen, to Isabell Carvill. Now, the evidence of Lillias McHardy to which I referred earlier suggests that shortly after the event Isabell Carvill made confessions to the effect that she was the person that personally stabbed Kenneth Finnie. Now, because there is only one stab wound it is not possible to have more than one person stabbing Kenneth Finnie and the Crown do not seek to rely on Isabell Carvill's confession that she was the person who personally stabbed Kenneth Finnie, because the Crown say that these are (sic) contradictory of Gemma Valenti's confession and are not consistent with the evidence of the pathologist Dr Clark as to where the stab wound was.

However, the Crown still seek a conviction against Isabell Carvill for murder on the basis that she was involved art and part, acting in concert, along with Gemma Valenti in the stabbing. The Crown say that she was acting along with Gemma Valenti in a common criminal purpose which included the use of a knife, and the use of a knife in such a way as to include the taking of human life, or to carry the obvious risk that human life would be taken. In other words, they ask you to infer - conclude - from the evidence that she either knew the knife would be likely to be used in the course of an assault, or continued to engage in the kicking and punching-type assault in the knowledge that a knife had been used.

As I said yesterday, there is no direct evidence to this effect in this case, and you could arrive at such a conclusion only by inference or conclusion from the evidence that was available.

Well, the Crown in this rely on the broadly stated confession which Isabell Carvill wrote on the tape box. You will recall the evidence of Mr Waugh that shortly after she had been cautioned and charged and the tape was stopped and the routine about signing the paper box was gone through, she wrote on the paper box, 'I, Isabell Carvill, did murder Kenneth Finnie.'

For corroboration the Crown point to the evidence that at a time which must have been at a relatively early stage in the sequence of events, and shortly after she had been engaged in assaulting Kenneth Finnie along with others by punching him, she picked up a knife from the floor of the kitchen, and thereafter she continued to assault him in the living room by kicking and punching, and the Crown point to the evidence of Dr Clark that the knife which John Hamilton said Isabell Carvill had picked up could have caused the fatal injury and indeed of the two knives that he was shown was his preferred candidate.

Well, ladies and gentlemen, in her case I direct you that that evidence would entitle you to infer or conclude that she actively associated herself in a common criminal purpose which included the use of a knife, and the use of a knife in such a way as to it (sic) include the taking of human life or carry the obvious risk that human life would be taken. Whether you accept that evidence, whether it satisfied you beyond reasonable doubt, is entirely a matter for you.

I should say this, ladies and gentlemen. The only basis on which the Crown present this case to you is that Gemma Valenti was the actor who stabbed Kenneth Finnie and that Isabell Carvill is involved art and part in concert with her. Accordingly, you could only find Isabell Carvill guilty of the reference to striking with a knife and of murder if you had already satisfied yourselves that Gemma Valenti was the person who actually stabbed Kenneth Finnie."

Submissions for the parties
[12] Counsel for the appellant submitted (1) that there was insufficient evidence to entitle the jury to convict the appellant in the absence of any evidence from which it could be inferred that the appellant knew that a knife would be used or that, having realised that a knife had been used, she continued to participate in the attack; and (2) that the trial judge misdirected the jury as to the evidential significance of the police interview given by Isobel Black because, having said that the evidence of the interview could be used by the jury in relation to the appellant, he failed to direct the jury that it could be used both in relation to the exculpation of the appellant and in relation to the appellant's incrimination of Gemma Valenti.

[13] The advocate depute submitted that there was a sufficient circumstantial case to entitle the jury to convict and that the trial judge's direction in relation to sections 259 and 261, in which he had echoed the wording of the statute, was accurate and sufficient.

Conclusions

Sufficiency
[14] It is not disputed that the fatal wound was inflicted by Gemma Valenti; but one of the factual questions at the trial was where the stabbing took place. No eye witness saw the stabbing. The only person who was seen to have a knife in her hand was the appellant when she picked up the knife from the floor. It seems clear to us, however, that the stab wound must have been inflicted during the scuffle in the kitchen. It is difficult to explain the presence of the knife and of the deceased's DNA in the basin on any other basis. Furthermore, the state of the deceased when he stumbled into the livingroom and lay inert on the floor supports the same view. That is also consistent with the pathologist's evidence.

[15] The question for us is whether there was sufficient evidence to entitle the jury to conclude that the appellant was art and part in the attack at the time when the stab wound was inflicted, knowing that Gemma Valenti had a knife, or that she continued to engage in the attack in the livingroom knowing that a knife had been used. Counsel for the appellant accepts that on either view there would be the necessary concert to justify a conviction for murder.

[16] In our opinion, there was ample evidence to entitle the jury to draw the inference that the appellant acted in concert in relation to the use of the knife. The incident was precipitated by the deceased's remarks to Gemma Valenti and Isobel Black. The appellant took part with Isobel Black in the attack on the deceased in the kitchen. She picked up the knife from the floor and put it in the basin. The jury could infer from the forensic evidence that by then the knife must have been bloodstained. The appellant then joined with the other two women in a further concerted attack on the deceased when he was lying defenceless on the livingroom floor. Apart from the stab wound, the deceased's other injuries must have been inflicted with considerable violence.

[17] There was therefore evidence entitling the jury to conclude that the appellant took part in a serious attack on the deceased in the kitchen immediately before the stabbing and in the living room immediately after it; and that between these two parts of the incident, she put the likely murder weapon in the basin.

[18] The appellant, Gemma Valenti and Isobel Black then left the house together. At the house and on the way to the appellant's house, the appellant and Gemma Valenti made the incriminating statements to which we have referred. When she was interviewed by the police, the appellant wrote a confession on the tape box. While we take into account the point made by counsel for the appellant that in certain of these statements the appellant was confessing to having stabbed the deceased, whereas that was not the Crown case, these statements were nonetheless available to the jury, in our view, as indicating her acknowledgement of complicity in the murder. Finally, the appellant, Gemma Valenti and Isobel Black washed the clothes that they had been wearing. All of these actings, looked at as a whole, strongly suggested that the appellant was art and part in the murder and, in our judgment, entitled the jury to convict.

The direction on sections 259 and 261
[19] On the brief arguments that we have heard on this point, we are not persuaded that counsel for the appellant is necessarily right in saying that the statement of Isobel Black was available to the appellant in support of both her case in exculpation and her incrimination of one of her co-accused. That general question may require fuller consideration (cf Renton and Brown, Criminal Procedure, 6th ed, para 24-25). For the purposes of this appeal it is sufficient for us to say that in directing the jury that the contents of the statement were available as evidence "in relation to" the appellant, the trial judge was accurately echoing the wording of section 261 and that there was no need for him to go further in the circumstances. By that stage there was no longer any suggestion that the appellant had stabbed the deceased. The Crown's position was that Gemma Valenti, and she alone, had done so and that the appellant was guilty only on the basis of concert. Even if we assume that the statement was available to the appellant as evidence in relation to her special defence, we consider that there would have been no practical purpose in the trial judge's labouring the point.

[20] Even if it was incumbent on the trial judge to spell out the direction in further detail, there cannot, in our view, have been any miscarriage of justice in relation to that matter since it is plain that the jury convicted Gemma Valenti on the basis that she inflicted the fatal wound and since there was such a strong case against the appellant on the basis of concert.

[21] For these reasons we refuse the appeal.