APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Abernethy
Lord Johnston
Lord Kirkwood
|
[2006]
HCJAC 54
Appeal No: XC954/05
OPINION OF THE COURT
delivered by LORD ABERNETHY
in
NOTE OF APPEAL AGAINST
CONVICTION and SENTENCE
by
BARRY JAMES MURPHY
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: J. Keenan, Solicitor
Advocate; Franchi
Finnieston, Glasgow
Alt: A. Stewart, Q.C., A.D.; Crown Agent
29 June 2006
[1] The appellant
is Barry James Murphy. On 8 September
2005 in the
High Court at Paisley he was convicted, together with a
co-accused, of a serious knife assault to severe injury, permanent
disfigurement, permanent impairment and to the danger
of life.
[2] The case was
continued for the purpose of obtaining social enquiry reports. For various reasons it took some time before
the case could be disposed of. On 14 December
2005 the
appellant was sentenced to 6 years detention in a Young Offenders
Institution. The appellant was aged 17
at the time of the offence. His
co-accused, who was 14 at the time of the offence, was sentenced to 3 years
detention.
[3] In his report
to this Court the trial judge narrates the circumstances of the assault, the evidence relied on by the Crown which the jury
must have accepted and the serious injuries that the complainer suffered. He does so in the following terms:-
"On 26
September 2004, the complainer, William Gove, had been visiting a friend in the Govan
area of Glasgow. He was making his
way home on foot in Elderpark Street.
At about 11.30pm he was approached by the two accused. One of them said to him 'any money big man?'. The complainer
replied 'only £2.00 for myself' and walked on.
He heard one of the boys shout 'fucking gees it'. He turned and saw the two boys behind
him. He felt what he thought was a punch
to his back below the right shoulder blade.
He was then stabbed again by Murphy.
He fell to the ground. This
second wound was on the left side towards the back. Murphy then gave the knife to his co-accused
and told him to stab the complainer. The
co-accused then stabbed him in the leg.
The complainer was very badly
injured. A number of witnesses,
including two policemen, who saw him on the ground thought he was dead. The complainer was nevertheless able to
identify both accused and to confirm that both had been present throughout,
both had left together and each had the weapon at some point. The complainer admitted that he had been
intoxicated. He was taken to hospital
where he required intensive care.
A number of young people who were
friends of the two accused spoke to seeing the injured complainer on the
ground. They also spoke to seeing the
two accused who were together and had a knife with
blood on the blade. It was a kitchen
knife. They each made remarks to their
friends indicating that they had been responsible for the stabbing.
The consultant surgeon who attended
to the complainer spoke of seeing three stab wounds, two to the back close to
each other and one to the thigh. He
required to remove part of the complainer's lung. The knife which inflicted these injuries
would have been sharp and at least of a blade of more than six inches. A fair degree of force would have been required. The injuries were life-threatening. His life was in danger. He would have died if the operation had not
been performed. He was certainly close
to death. He would suffer shortness of
breath and scarring."
[4] Like his
co-accused the appellant did not give evidence.
He relied on what he had said of an exculpatory nature in a police
interview, a mixed statement which had been put in evidence by the Crown. In relation to what the appellant said in
that interview the trial judge gave the following direction to the jury:-
"Evidence of such statements
(statements by an accused person) is admissible in the case, whether favourable
or unfavourable to an accused person who made them, whether spoken to by a
police officer or by anybody else doesn't matter. However, where such a statement is favourable
to the accused person, it is what we call exculpatory which indicates an
absence of guilt. Where such a statement
is exculpatory you should, as it were, regard it with a pinch of salt if it is
not confirmed by the accused person giving evidence from the witness box,
because when the statement is made the accused person is not on oath, he is not
the subject of cross-examination by the Advocate Depute and therefore such a
statement is different from giving evidence from the witness box and you should
weigh it accordingly in deciding whether to give any credence to an exculpatory
statement".
[5] The appellant
appealed against his conviction on the ground that a miscarriage of justice had
resulted from that direction and, in particular, the direction that "where such
a statement is exculpatory you (the jury) should, as it were, regard it with a
pinch of salt if it is not confirmed by the accused person giving evidence from
the witness box".
[6] Mr Keenan, solicitor
advocate for the appellant, submitted that that direction carried with it an
overtone which indicated that the statement should be disbelieved. It was of particular importance because it
related to the only piece of evidence on which the defence relied. What the trial judge had said was a misdirection and in the circumstances it was one that had
led to a miscarriage of justice. The
appeal should therefore be allowed and the conviction quashed.
[7] In reply the
Advocate Depute submitted that the passage in question did not amount to a misdirection. In
any event, there had been no miscarriage of justice. The use of the phrase "with a pinch of salt"
had to be looked at in the context of the particular passage in the charge and
in the context of the charge as a whole.
When that was done it could not be said that the judge was in any way
directing the jury to reject the statement.
He was doing no more than directing the jury that they should look at
the statement with care for the reasons he went on to explain and weigh it
accordingly. The appeal against
conviction should therefore be refused.
[8] In our
opinion the use of the phrase "with a pinch of salt" was not felicitous and it
has led to this appeal. A simple
cautionary direction to bear in mind when considering the statement that it had
not been given on oath and had not been subject to cross-examination would have
been preferable. But judges are
permitted a certain latitude in the way they phrase
their charges. A charge is not a mere
formulaic recitation. When looked at in
the context of that part of the charge and in the context of the charge as a
whole, we are not persuaded that what the judge said amounted to a misdirection. In
any event, we are quite unable to say that in the circumstances it resulted in
a miscarriage of justice.
[9] The appeal
against conviction is therefore refused.
[10] With regard to
the appeal against sentence, Mr Keenan accepted that the appellant had been
convicted of a very serious offence and that a custodial sentence was
inevitable. He reminded us that the
appellant was only 17 at the time and was a first offender. In all the circumstances the sentence of 6
years detention was excessive in itself and was
excessive when compared with the sentence of 3 years detention which had
been imposed on the co-accused.
[11] It is true
that the appellant was only 17 at the time and that he was a first
offender. However, the crime of which he
was convicted was indeed a very serious one.
The appellant was in the street armed with a kitchen knife with a blade
more than six inches long. The assault
of which he was convicted consisted first of two stab wounds in the back
inflicted by him. He then gave the knife
to the co-accused and told him to stab the complainer, which he did in the
thigh. It was a completely unprovoked
attack and resulted in very serious injuries, which were nearly fatal and which
have had a lasting effect.
[12] The judge took
all these factors into account. In
respect of what he described as the current knife culture in the west of Scotland and the very serious injuries to the
complainer, he imposed a sentence on the appellant of 6 years detention.
[13] This was a
severe sentence, but deliberately so. We
are not persuaded that it was outside the range of sentences appropriate for
such an offence. Nor are we persuaded
that the distinction that the judge drew between the sentence he imposed on the
appellant and the one he imposed on the co-accused was not justified in the
circumstances.
[14] For these
reasons we are not persuaded that the sentence imposed on the appellant was
excessive. The appeal against sentence
is therefore also refused.
