APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Macfadyen Lord Eassie Lord Marnoch |
[2008] HCJAC14 Appeal No: XC24/05 OPINION OF THE COURT delivered by LORD
MARNOCH in APPEAL AGAINST CONVICTION by BRYAN JOHN DONALDSON Appellant; against HER MAJESTY'S ADVOCATE Respondent. |
Act: Burns, QC,; Balfour +
Manson LLP
Alt: K. Stewart, AD,; Crown
Agent
[1] In this case
the appellant was convicted of the following amended charge:
"You having formed the intention to
kill Margaret Anne Penrose or Donaldson, c/o Central Scotland,
Stirling, your wife and to benefit financially from her death, did between 1
January 2003 and 30 October 2003, both dates inclusive, at Glendochart Caravan
Site, Luib, by Crianlarich (a) induce said Margaret Anne Penrose or
Donaldson to enter into a contract of life insurance on the joint lives of you
and said Margaret Anne Penrose or Donaldson in the sum of £100,000 payable
on the first death of you or said Margaret Anne Penrose or Donaldson; (b)
attempt to induce said Margaret Anne Penrose or Donaldson to execute a
Will leaving her whole estate to you as sole beneficiary in the event of her
pre-deceasing you; and (c) on 30 October 2003 at Rose Cottage, Glendochart
Caravan Site, Luib, by Crianlarich, assault said
Margaret Anne Penrose or Donaldson, seize her by the head, struggle
with her, push her head towards an open fire, ignite a quantity of fireworks
causing them to explode and detain her in said cottage against her will all to
her severe injury and you did attempt to murder her."
[3] The remaining
ground of appeal arose out of the following passage in the judge's charge:
"The next thing, ladies and
gentlemen, that I want to say something about is a chapter headed evidence. Now you'll be surprised that such a chapter
exists because I said I wasn't going to usurp your function and go through the
evidence and I'm going to abide by my promise, I'm not going to do that. I don't intend to rehearse the evidence and
you may think, ladies and gentlemen, the real issues for you in this case is
whether Mrs Donaldson was assaulted by her husband and if so what the
consequences of any such assault were - that is one matter - or on the
other hand as I understand the accused's position that this was an elaborate
hoax by her as an act of revenge for his infidelity. That really seems to be the issue at the end
of the day for you and in seeking to reach your decision and your verdict in
this case, you have to assess the evidence of each witness in exactly the same
way whether he or she is a witness for the Crown or the defence."
[4] This, it was
said, also involved an undue simplification or misinterpretation of the
appellant's position and the words "elaborate hoax", echoing, as they did, an
expression used by the Advocate Depute in his closing speech, were highly
tendentious and likely to lead to a miscarriage of justice.
[5] In
considering this ground of appeal it is right to note that the trial judge's
reference to the "real issue(s)" to be decided cannot have been a reference to
what might be termed the ultimate issue in any criminal trial, namely whether
the Crown has established the guilt of the accused according to the necessary
standard of proof. This, indeed, was
repeatedly pointed up by the trial judge in the present case. Rather do we think, therefore, that, read in
its context (viz. that of the
"evidence") the trial judge was simply focusing on what is so often a crucial
matter, namely the credibility and reliability of the complainer.
[6] Read in that
way the passage in question is, we think, not far off the mark. This, after all, was a case in which, if she
was not telling the truth, the complainer had not only told lies but had either
fabricated or misrepresented real evidence ranging from the igniting of
fireworks and the starting of a fire to the twisting of a door handle, a trail
of blood and the breaking of windows. In
these circumstances the Advocate Depute was, we think, well founded in his
submission that what was required was a word inferring not only dishonesty but
deception. In cross-examination the
appellant himself, as it happens, at one point agreed with the Advocate Depute that
a correct description was "a set-up". In
our opinion, therefore, while the word "hoax" may not have been ideal, its use
in this case cannot remotely be seen as productive of either unfairness or a
miscarriage of justice.
[7] The appeal is
accordingly refused.