APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hardie Lady Smith Lady Cosgrove	[2011] HCJAC 100 Appeal No: XC801/10 OPINION OF THE COURT delivered by LORD HARDIE in APPEAL AGAINST CONVICTION by MUSTAFA ELSHERKISI Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Miss M. E. Scott, Q.C., Prais; Thorley Stephenson, Solicitors

Respondent: Prentice, Q.C., Solicitor Advocate, A.D.; Crown Agent

18 October 2011

Introduction

[1] On 15 November 2010 at Edinburgh High Court the appellant was convicted by a majority verdict of the jury of the following charge:

"On 26 May 2010 at 1 Stenhouse Gardens North, Edinburgh you MUSTAFA ELSHERKISI did assault Mohammed Idris Mirza, formerly residing at 1/5 Stenhouse Gardens North, Edinburgh and did strike him on the body with a knife and you did murder him, and it will be proved in terms of Section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated."

On 6 December 2010 at an adjourned diet for sentence at Edinburgh High Court the trial judge sentenced the appellant to be imprisoned for life and fixed the punishment part of that sentence at fifteen years. In addition the trial judge made a recommendation for deportation of the appellant in terms of section 6(2) of the Immigration Act 1971.

Circumstances of the offence

[2] It appears from the report by the temporary judge who conducted the trial that in or about 2000 the appellant came to reside in the United Kingdom and married a local woman in Bradford in about 2001. They resided in the Yorkshire area until about the beginning of 2010 when they moved to Edinburgh and rented a flat beneath that occupied by Mohammed Mirza, the deceased, and his family. The deceased's brother, Iqbal Mirza, lived within the same building at the same level as the appellant. There was a history of friction between the appellant and his wife and their neighbours relating to access to a car parking area by the appellant and also relating to the alleged fouling by the appellant's dog of common garden ground to the rear of the flats. On the date libelled at about 9.30pm the appellant was exercising the dog in the common garden ground when he was confronted by the deceased. A quarrel ensued as to whether the appellant would pick up the dog's faeces. Matters became quite heated and abuse was exchanged on both sides resulting in Iqbal Mirza coming out of his flat to try to calm matters. The appellant went into his own flat and the deceased was persuaded by his brother to go upstairs to his own house. The temporary judge notes that "there is a high probability that, before the appellant went back to his flat ..., the victim had called the wife of the accused 'a white bitch'". This was apparently one of the factors which caused the appellant to react violently towards the deceased. Shortly after entering his own home the appellant re-emerged with the murder weapon which was a large ornamental dagger. The appellant called the deceased a "Paki bastard". The deceased turned as he was going upstairs and made to come back down to confront the appellant. At this point the dagger held by the appellant entered the upper chest of the deceased as a result of which the deceased died a few minutes later. The cause of death was a deep stab wound to the aorta. The circumstances in which the dagger entered the body of the deceased were in dispute. The Crown's position was that at the point at which the deceased turned to come downstairs towards the appellant the appellant sprang up the stairs at him and stabbed him on the upper part of the chest. The appellant's position at trial was that the deceased fell onto the dagger and that his death was the result of an unfortunate accident.

Grounds of appeal

[3] The grounds of appeal allege that the temporary judge misdirected the jury in a number of material respects and that in respect of each and all of these misdirections there has been a miscarriage of justice. The first alleged misdirection arose in the context of his definition of murder. Although the temporary judge correctly defined the crime of murder, he indicated that an intention to kill was "obviously wicked" (charge to the jury, page 7) and he advised the jury that the question for them was whether there was a deliberate intention to kill and "if so, that would be murder" (charge, page 10). These amounted to misdirections because it was always a matter for the jury to determine whether there was the requisite wickedness to render a killing murderous. Even where there was a deliberate intention to kill, the jury could nevertheless conclude that the wickedness necessary for murder was absent. The second alleged misdirection arose in the context of the temporary judge's directions relating to the alternative crime of culpable homicide, if the jury concluded that the requisite wickedness was absent. In that regard there had been a series of errors by the temporary judge. He failed to direct the jury that they could convict the appellant of culpable homicide even if they concluded that there had been a deliberate intention to kill; he failed to direct the jury about the evidence available to them in their assessment of proof of wickedness; he failed to make clear to the jury that the reason for the appellant arming himself and brandishing a knife was relevant to the assessment of wickedness; although there was no plea of provocation, the insult to the appellant's wife and the aggressive and threatening behaviour of the deceased and his family were relevant to the assessment of wickedness but no directions were given to that effect; his directions about accident were confusing and unclear; he made no mention of the defence evidence and failed to direct the jury on how to approach defence evidence; he failed to advise the jury that the accused's account did not require corroboration and that if the jury disbelieved the accused's evidence the test was whether the evidence raised a reasonable doubt that the Crown had proved its case; he failed to direct the jury as to how they should treat prior statements made by witnesses to police officers.

Submissions on behalf of the appellant

[4] Miss Scott's primary submission was that the effect of the passages at pages 7 and 10 of the trial judge's charge to the jury was that the jury were advised that if there was a deliberate intention to kill the deceased that amounted to murder because obviously such an intention was wicked. That was a misdirection because it removed from the jury the determination of the crucial matter of whether the appellant had the necessary mens rea for murder. All intentional killings were not wicked and wickedness was not a necessary inference that could be drawn from an intention to kill. There were many situations in which an intention to kill might lack the necessary wickedness for murder. For example, it was well established that provocation or diminished responsibility would result in a conviction for the lesser crime of culpable homicide, even although the assailant had intended to kill his victim. The existence of provocation or diminished responsibility was relevant to the jury's assessment of whether the assailant possessed the necessary wickedness when he killed his victim. Miss Scott accepted that there may well be circumstances where the evidence was such that the jury was bound to conclude that an intention to kill was obviously wicked and that an assault resulting in death in such a case was accordingly murder.

[5] Moreover, she acknowledged that, in the present case, the circumstances came close to that situation but she did not concede that there was no evidence relevant to the jury's assessment whether the appellant had the necessary wicked intention to kill the deceased. Although there was insufficient evidence properly to found a plea of provocation or self defence, there were issues in the evidence which the jury would have been entitled to consider in order to determine whether the appellant lacked the necessary "wickedness of heart" for murder. That evidence consisted of the heated argument and exchanges of racial insults, threats and abuse between the appellant and the deceased; the evidence of the appellant that he armed himself for protection and that when he did so and left the house he had no intention to kill the deceased; and that when he brandished the knife he was in fear for himself and his family. In Drury v HMA 2001 SCCR 583 the Court had considered the nature of the mens rea of intentional murder. At paragraphs [17] and [18] the Lord Justice General (Rodger) made it clear that in the context of a case involving alleged provocation it was a matter for the jury to determine what the accused's state of mind was at the time when he killed his victim and that the evidence relating to provocation was simply one of the factors which the jury had to take into account. Miss Scott submitted that a proper construction of those passages resulted in the conclusion that, as a generality, the jury are the arbiters of whether an accused had the necessary mens rea for murder, having regard to all of the factors disclosed in the evidence accepted by them. Hume (vol. i, p. 254) seems to suggest that malice is implied by the act of intentional killing, indicating a presumption of wickedness in such circumstances. Hume also refers to the accused overcoming the presumption of wickedness by leading evidence of necessity or excusable infirmity. Miss Scott submitted that these observations were inconsistent with the later observations in Hume at page 256 to the following effect:

"Thus, on the whole, the malice which the law requires in this particular, proves to be no more than this, - a depraved and wicked disposition; a heart regardless of duty or humanity; which is to be gathered from the whole circumstances of the case, as they appear in evidence."

That passage seems to suggest that in intentional killings the question whether the Crown has established the necessary wickedness to prove the crime of murder is essentially a jury question and that is consistent with the later approach adopted by the court in Drury.

[6] In support of the second ground of appeal Miss Scott submitted that the trial judge failed to direct the jury clearly on the basis upon which they could conclude that the appellant was guilty of culpable homicide. In particular it was submitted that the directions on this matter suggested that culpable homicide could only arise in the context of the defence case of accident. This compounded the misdirection in relation to the charge of murder. Furthermore, she submitted that the trial judge had failed to direct the jury concerning the defence case which had been advanced and how they should assess it. In particular, he failed to give directions to the effect that the appellant did not require to prove his case beyond reasonable doubt and that the appellant's evidence did not require to be supported or corroborated by other evidence if the jury accepted it. He also failed to direct the jury that, if they did not believe the appellant, they must nevertheless acquit him if his evidence or any other evidence in the case raised a reasonable doubt in their minds as to the proof by the Crown of the case against the appellant. Although the trial judge directed the jury that "it is never for an accused person to establish his innocence" (charge, pp. 2-3), in the absence of a clear direction to the contrary, the jury might have considered that defence evidence required to be established beyond a reasonable doubt and also required to be corroborated. Miss Scott accepted that it was necessary to read the charge as a whole to determine whether there had been a miscarriage of justice in this, or in any other, respect. Finally, she submitted that the trial judge had failed to give directions in relation to the evidential status of prior statements given by witnesses to police officers on the night of the incident. The deceased's relatives gave statements to the police at the time and adopted their statements in evidence. The statements suggested that the witnesses had a less clear recollection of the incident than that given in their evidence-in-chief. It was incumbent upon the trial judge to direct the jury as to the evidential status of such statements. Miss Scott confirmed that in the context of this case she was not submitting that the alleged misdirection in relation to prior statements amounted to a miscarriage of justice of itself.

Submissions for the Crown

[7] The Advocate Depute submitted that the judge's charge should not be considered as an academic lecture; rather it was an explanation of the legal framework, within which the jury should place their conclusions about the evidence that they had heard. It was accepted that the direction by the trial judge to the effect that an intention to kill someone is obviously wicked is an erroneous statement of the law, if it is considered in the abstract. However, in the context of the present case the direction was sound. If the jury concluded in this case that the appellant intended to kill his victim, there could be no doubt that the necessary wickedness had been established. In any case the trial judge had to determine whether there were legal issues relevant to the jury's determination of the question whether the Crown had established the necessary wickedness even where there had been an intention to kill. Such issues might include questions of diminished responsibility, self defence or provocation. In the present case no such issues arose. There had been a heated exchange between the deceased and the appellant. The appellant went into his flat and returned with a large ornamental dagger. He was abusive towards the deceased and sprang at him, stabbing him in the chest. In that situation, if the jury concluded that there was an intention to kill the deceased, there could be no doubt that the necessary wickedness had been established.

[8] The Advocate Depute relied upon Anderson v HMA 2010 SCCR 270 which, he submitted, was not dissimilar in many respects from the present case. In that case there had been an altercation between two men, one of whom was the appellant's brother. In the course of a fight which did not involve weapons it became obvious that the appellant's brother was getting the worse of the encounter. The appellant ran to his mother's house, which was nearby, and armed himself with a kitchen knife before returning to the scene of the fight involving his brother. Upon his return the appellant became involved in a brief encounter with a friend of the person fighting with his brother. At the end of the fight between his brother and the deceased the appellant broke off his encounter and stabbed the deceased once in the lower abdomen. The court concluded that the failure of the trial judge to direct the jury about culpable homicide had not been a misdirection because a verdict of culpable homicide would have been unreasonable, having regard to the nature of the violence that the appellant used towards the deceased and directed at a vulnerable part of the deceased's body, in particular, in the direction of his heart. In the present case, if the jury concluded that the appellant stabbed the deceased, intending to kill him, there was no legal basis for returning any verdict other than one convicting the appellant of murder. The sole issue for the determination of the jury was whether the appellant intended to kill the deceased. If he did, that intention was obviously wicked in the circumstances of this case.

[9] As for the second ground of appeal, the Advocate Depute submitted that there had been no need for the trial judge to give the directions sought by Miss Scott. The Advocate Depute submitted that when the charge is read as a whole it is clear that the trial judge dealt adequately with the matters complained of. The Advocate Depute accepted that it would have been better if the trial judge had given directions about the relevance of prior statements but his failure to do so did not amount to a misdirection in this case. The ground of appeal and the submission in this regard did not focus on the parts of the evidence which were said to be clearer when the witnesses testified than when they gave their police statements. In all the circumstances there had been no miscarriage of justice.

Discussion
[10] Although Miss Scott in her submissions referred to a number of passages in Hume it is unnecessary for us to give consideration to any of the passages other than those in which Hume considers the crime of wilful murder. His examination of this issue commences in section VI at page 254. The first passage to which we were referred is in the following terms:

"The peculiar characteristics of this sort of homicide [wilful murder] is, that it is done wilfully, and out of malice aforethought. But these terms are not here to be received in their most obvious sense, of a rooted and special enmity to the person killed, but in the larger and more general sense of dole, or a wicked and mischievous purpose, and as contradistinguished to those motives of necessity, duty, or allowable infirmity, which may serve to justify or excuse the deed."

This passage simply emphasises that when one is considering the question of malice in the context of homicide it is to be construed as meaning wicked intention or dole. That has to be contrasted with a situation where homicide is committed in circumstances which might excuse or mitigate the deed. In our view these observations are equally applicable at the present time. As was observed in Drury:

"Saying that the perpetrator 'wickedly' intends to kill is just a shorthand way of referring to what Hume (Vol. i p.254) describes as the 'murderer's wicked and mischievous purpose' in contradistinction to 'those motives of necessity, duty or allowable infirmity, which may serve to justify or excuse' the deliberate taking of life." (Lord Justice General (Rodger) at paragraph [11]).

The circumstances in which responsibility for a homicide might be excused or mitigated might arise in a variety of situations and it is neither necessary nor appropriate to seek to provide an exhaustive list of them.

[11] The second passage from Hume to which Miss Scott referred also appears at page 254 and is in the following terms:

"The malice is implied prima facie in the act itself of intentional killing, which is the highest possible injury; and it lies therefore with the pannel to overcome the presumption by evidence on his part, of some of those circumstances of necessity, or excusable infirmity, which may serve him for a defence."

Miss Scott submitted that this passage appeared to suggest that there was a presumption from the act of intentional killing that the necessary wickedness was present in the mind of the assailant. If so, such an approach was inconsistent with the later passage at page 256 to the following effect:

"Thus, on the whole, the malice which the law requires in this particular, proves to be no more than this, - a depraved and wicked disposition; a heart regardless of duty or humanity; which is to be gathered from the whole circumstances of the case, as they appear in evidence."

Counsel submitted that the suggestion of a presumption was also contrary to the approach of the court in Drury. We do not accept that submission. Properly understood the passage at page 254 of Hume is designed to emphasise that, where a homicide follows upon an intention to kill, the necessary wickedness of the intention can be implied in the absence of any other circumstances which would justify or mitigate the actions of the accused in killing his victim. Although such circumstances may be apparent from the evidence-in-chief of the Crown witnesses, it is more likely that they will be elicited in cross-examination on behalf of the accused or in the leading of positive evidence on his behalf. From such exculpatory or mitigatory evidence the jury might conclude that the accused's intention to kill his victim lacked the necessary wicked and mischievous purpose required for murder. The reference by Hume to the pannel overcoming the presumption "by evidence on his part" should not be construed as implying an obligation upon an accused to lead positive evidence; rather it envisages the issue being raised on behalf of the accused in evidence. That can arise either in the cross-examination of Crown witnesses or by leading positive evidence from defence witnesses or both. It is not difficult to understand Hume's reasoning in this regard because issues of self defence, provocation or diminished responsibility are liable to be particularly within the exclusive knowledge of an accused and ought to be raised on his behalf if it is to be maintained that an intentional killing lacks the wickedness required for murder. In cases of self-defence, it is sufficient for the accused to give notice, in advance of the trial, of such a defence and thereafter it is for the Crown to exclude it. In contrast, a defence of insanity at the time carries with it an onus upon the accused to establish it because proof of insanity is required before the presumption of sanity can be displaced: cf. Lambie v HMA 1973 JC 53, Lord Justice General (Emslie) at page 57. Equally in a case where the accused seeks to rely upon his diminished responsibility there is a legal onus on the accused to establish such a plea (Lilburn v HMA [2011] HCJAC 41). The passage in Hume at page 256 accords with the views of the court in Drury, from which it is clear that it is a jury question whether the Crown has proved beyond a reasonable doubt that the accused acted with the necessary mens rea for murder. However, that is not inconsistent with the ability of the jury to imply the necessary wickedness in the absence of any circumstances justifying or mitigating the homicide.

[12] In Gordon: "The Criminal Law of Scotland" (3^rd edition) at paragraph 23.13 the author considers the question of the relationship between the passage in Hume at page 254 (supra) and the decision in Drury and observes inter alia:

"The opinions in Drury may be read, however, as suggesting that such wickedness as is required is not to be presumed even rebuttably from a proved or admitted intention to kill, but rather is to be considered independently in each case by the jury according to the whole of the relevant evidence and the jury's moral judgment of the accused's intentional conduct in the circumstances of the case. If the latter is correct, then the prosecutor's task at a murder trial will have been significantly increased by virtue of his having to address the issue of wickedness, whilst the accused will have an enhanced opportunity for acquittal of murder since his ability to convince the jury that his intention had not been wicked would now appear to be at large. It can hardly, however, have been the Court's intention in Drury to create a situation in which, for example, whether a man who sacrifices his child from religious motives is guilty of murder or not is to be determined upon a jury's unlimited view of his wickedness in the specific circumstances of his case."

We reject any suggestion that the question of the wickedness of an intention to kill is at large for the jury in every case, or that the determination of that question is not constrained by any legal limits. Later in the same paragraph the author recognises that the law has always claimed the right to decide what is relevant to the determination of that question and he cites the example of self-induced intoxication. Moreover, he acknowledges that in Drury itself the court recognised that there are rules as to the availability of provocation. We agree with these observations which necessarily recognise the role of the trial judge in determining whether there is any relevant evidence which could entitle a jury to conclude that what prima facie was an obviously wicked intention to kill was not murder. We have in contemplation a case where there is evidence that the accused shoots his victim in the head at point blank range and the only explanation is self-induced intoxication. In such a case we are in no doubt that it would be appropriate to direct the jury that if they were satisfied beyond reasonable doubt that the accused killed the deceased by shooting him in the head and that he intended to kill the deceased, a matter which they could infer from his actions, they must convict him of murder. It would be inappropriate to leave the jury to consider at large the question of the wickedness of the accused's intention. It will be apparent from our observations that we are largely in agreement with the undernoted passage which appears in Gordon later in the same paragraph:

"With respect to these various points, as also the very great difficulty of deciding what wickedness means, in general or in specific circumstances, it is submitted that a jury should be advised that, in voluntary murder, the mens rea of which they require to be satisfied is indeed a wicked intent to kill the deceased, but that if they are satisfied that intention to kill is proven or admitted on the part of the accused they may (but not must) infer that such intention is wicked in the absence of any legally relevant factor (such as provocation) which would cast doubt on the correctness or fairness of that inference. This would perhaps preserve the common sense view that most accused who intentionally kill deserve to be treated as murderers (which is ultimately what a requirement of 'wickedness' must mean) - at least in the absence of any legally relevant factor which would suggest otherwise - whilst emphasising that murder, whether voluntary or involuntary, is a crime characterised by wickedness."

Indeed our only point of difference with the above statement relates to the appropriate direction where intention to kill is either admitted or proved. In such a case, in the absence of any legally relevant factor capable of justifying or mitigating the accused's actions, the jury should be directed that they must convict of murder. Any other direction leaving the matter to the discretion of the jury would have the effect of enabling them to ignore the boundaries set by legal relevancy and to determine the issue on the basis of irrelevant considerations. Not only does that discretionary approach defy the common sense view mentioned by the author but it would place an unduly onerous burden upon the Crown in murder cases where the killing was intentional and could result in verdicts that brought the law into disrepute for failing to provide adequate protection to society as a whole. Moreover, our approach is consistent with the acknowledgement by Miss Scott that there may be cases where the evidence was such that the jury was bound to conclude that an intention to kill was wicked and a verdict of guilty of murder was appropriate. In such a case we consider that the trial judge is not only entitled to direct the jury as earlier indicated; he or she is bound to do so.

[13] In summary while it will be necessary in most cases for the trial judge to give the jury adequate directions to enable them to determine whether the Crown has established beyond reasonable doubt that the accused acted with the necessary wicked intention or the necessary wicked recklessness required for murder, as in all cases, the charge to the jury ought to reflect the particular circumstances of the trial in which the jury are involved. There may well be cases where the wickedness of an intention to kill cannot be controverted, assuming the jury is satisfied that there was such an intention. In such circumstances, if the jury is satisfied that the accused intentionally killed his victim, then in the absence of any justification or mitigation for such an action the necessary dole will be inferred. Accordingly it would be sufficient in such a case for the trial judge to direct the jury that if they concluded that the accused intentionally killed his victim they should convict him of murder.

[14] In the instant case it is important to bear in mind the context in which the trial judge was directing the jury. It was against the background of a trial in which there was no dispute that the dagger in the hand of the appellant had entered the body of the deceased resulting in his death. Nor was there any dispute that the appellant had gone into his flat after the altercation with the deceased and come out again in possession of a large ornamental dagger. The sole issue in dispute was the manner in which the dagger, at the hand of the appellant, entered the body of the deceased. On the one hand, the Crown witnesses present at the time, who were the relatives of the deceased, testified that the appellant called the deceased "a Paki bastard" as the deceased was ascending the stairs to his flat. The trial judge's report continues:

"The victim turned on his way up the stairs and made to come back down to confront the appellant. As he did so, it appears that the appellant sprang up the stairs at him and stabbed him on the upper part of the chest with the murder weapon. The victim fell down on the stairs, while the appellant returned to his flat, which was only a few yards away."

On the other hand, the appellant testified that, having entered his flat, he went out again to retrieve his dog which had been left in the back garden. He had done so because his wife was upset at the situation. The trial judge records the appellant's position in evidence as follows:

"He had taken the knife with him in case of further aggression by either of the Mirza brothers. He had been holding the knife in front of him for his own protection and the victim had lunged down the stairs towards him and impaled himself on the knife."

Professor Busuttil gave expert evidence to the effect that the injury inflicted upon the deceased was consistent with the description given by the appellant. In that context the question for the jury was whether they were satisfied beyond reasonable doubt that the accused intentionally stabbed the deceased. It is against that background and in the context of the directions as a whole that the sentence "[i]ntending to kill someone is obviously wicked" should be construed. If such a statement is considered in the abstract it is an inaccurate statement of the law because it is apparent from the passages in Hume quoted above and also from Drury that in certain circumstances intentional killings might occur in legally relevant circumstances where the assailant does not have the requisite wickedness to merit his conviction for murder, in which case the assailant would be convicted of the lesser crime of culpable homicide or acquitted altogether depending upon the jury's assessment of the evidence as amounting to mitigation or exculpation for the assailant's conduct. However, the question for our determination is whether in this case the direction amounted to a misdirection.

[15] There are a number of passages in the trial judge's charge to the jury which may be relevant in determining whether there has been a misdirection and, if so, whether that has amounted to a miscarriage of justice. The first passage commences at page 6 when the trial judge is considering the crime of murder. He gave the following direction:

"It involves, ladies and gentlemen, the unlawful killing of another person either wickedly intending to kill him or by acting in such a way as to show wicked recklessness as to whether the victim lives or dies. Proof of motive isn't necessary but it must be shown that the accused either had a wicked intention of killing the victim or that he acted with wicked recklessness as to whether the victim lived or died. A word about each of these requirements. Intention is a state of mind to be inferred or deduced from what's been proved and has been said or done. Wicked in the context of intention has no particular legal significance, it just has its ordinary meaning. Intending to kill someone is obviously wicked. (Emphasis added.) Wicked recklessness is also something to be inferred from what's been proved to have been said and done and from the nature of the attack and the severity of the injury inflicted. It's acting in such a way as to show total indifference as to whether or not the victim's death results. It involves committing an attack of such severity that it could easily have led to death and being completely indifferent to whether that might result. It is a wicked disregard for the consequences. So, for the Crown to prove the charge of murder, you would need to be satisfied firstly that the accused killed the victim and secondly, that in doing so he acted either with a wicked intention to cause death or in a way which showed wicked recklessness as to the victim's fate."

At page 9/10 of his charge the trial judge stated:

"So, it may come to this, ladies and gentlemen, and I am still speaking about charge 1 [the murder charge] that you have to ask yourself these questions. Firstly, was the blow that caused the death deliberate and if so, was it either deliberately intended to kill or was it in an act of such wicked recklessness as to display a callous disregard as to whether the victim lived or died. If so, that would be murder.

An alternative view might be that although the blow that was struck undoubtedly caused the death the blow was not inflicted with an intention to cause death or in such circumstances as to display the necessary wickedness to constitute murder. In that case your finding would be guilt of culpable homicide. A third view might be that the whole matter was a wholly unfortunate accident. That there was no intention to harm or to attack with a knife and that the penetration of the falling body with the knife admittedly held by the accused was an accident pure and simple and this is the position that the defence suggest that you should accept and that being the situation you would acquit Mr Elsherkisi."

From these passages it is clear that the trial judge properly explained to the jury the three options available to them namely guilt of murder, guilt of culpable homicide or acquittal by reason of accident. Moreover, in the context of the option of convicting the appellant of murder he explained to the jury that that could only occur if they concluded that the appellant deliberately intended to kill the deceased or acted with the requisite wicked recklessness for murder.

[16] The jury's verdict discloses that the jury concluded that the appellant deliberately inflicted the stab wound upon the deceased and in doing so he either deliberately intended to kill the deceased or acted with the wicked recklessness required for murder. No issue was taken with the directions about wicked recklessness and the sole matter for our consideration is whether the bald statement that intending to kill someone is obviously wicked was a misdirection in this case. If the jury concluded, as they must have done, that the appellant deliberately stabbed the deceased on the upper part of the chest causing a deep stab wound to the aorta and if they concluded that such an act was so wickedly reckless as to amount to murder there is and can be no challenge to such a verdict. The only basis upon which the verdict might be set aside is if the jury convicted the appellant on the view that in deliberately stabbing the deceased (which they must have concluded in this case to the exclusion of accident) the appellant intended to kill him and if the trial judge misdirected the jury at pages 7 and 10 of his charge in the manner alleged. We have already expressed our opinion that the need for such a direction depends upon the circumstances of the case. In the present case there was no special defence of self defence or insanity at the time which would exculpate the appellant nor, as was accepted by Miss Scott, was there evidence to properly found a plea of provocation. Notwithstanding the absence of such evidence Miss Scott sought to rely upon other factors which the jury could have taken into account in assessing the appellant's mens rea. These factors were specified in the written case and argument. No further elaboration of them was made in oral argument nor was there any need to do so.

[17] The first factor was that the stabbing had occurred in the context of a heated argument between the appellant and the deceased and exchanges of racial insults, threats and abuse between them. According to the trial judge's report there was undoubtedly a heated argument between the appellant and the deceased in the rear garden of the property where they resided. Thereafter the appellant went into his own flat prior to which the deceased may have referred to the appellant's wife as "a white bitch". Shortly after the appellant entered his house he re-emerged with the ornamental dagger. As the deceased was ascending the stairs towards his house the appellant called him a "Paki bastard" causing the deceased to turn round, at which point the appellant stabbed him. Where an accused is charged with murder, apart from cases involving discovery of sexual infidelity where fidelity is to be expected, provocation can only arise where the accused has been subjected to violence. As was recognised in Cosgrove v HMA 1990 JC 333 it was at that time appropriate to give directions to the jury on provocation in accordance with the classic definition in McDonald on Criminal Law (4^th Edition) at page 135 to the following effect:

"The defence of provocation is of this sort - 'Being agitated and excited, and alarmed by violence, I lost control over myself, and took life, when my presence of mind had left me, and without thought of what I was doing'."

That is still an appropriate direction. Moreover in Cosgrove the court quoted from McDonald at page 133 to the following effect:

"Words of insult, however strong, or any mere insulting or disgusting conduct, such as jostling, or tossing filth in the face, do not serve to reduce the crime from murder to culpable homicide."

The equivalent passages in the 5^th edition are contained within pages 94 and 93 respectively. Although the author referred to the reduction of the crime from murder to culpable homicide, an approach disapproved by the Lord Justice General (Rodger) in Drury, the meaning of this passage should be taken as indicating that such conduct is irrelevant to the assessment of the state of mind of the person causing the death of the deceased. If in any case an intention to kill can properly be described as wicked, absent any factors which would entitle the jury to conclude otherwise, verbal insults, however gross, cannot alter that view. In Cosgrove the court observed at page 339:

"In effect ... the trial judge was directing the jury that some form of violence was necessary in order to found a plea of provocation and that, although he does not say so in terms, insulting words would not be enough.

In our opinion these were proper directions for the trial judge to give on provocation."

In Drury the Lord Justice General observed at paragraph [25]:

"In matters of homicide Scots law admits the plea of provocation only within certain bounds which are considerably narrower than those within which it operates in English law. In Scots law it applies only when the accused has been assaulted and there has been substantial provocation. In English law, by contrast, even a slight blow or mere jostling may be sufficient to admit the plea. In Scots law, no mere verbal provocation can palliate killing. The same applied in England until the law was changed by section 3 of the Homicide Act 1957. The difference in scope of the doctrine of provocation in the two systems does not arise, it should be stressed, because Hume and the Scottish judges are unaware that people may react violently to minor physical provocations or to insults. Rather, as a matter of policy, the law has taken the view that in such cases the person assaulted or the person insulted should be expected to control himself, at least to the extent of not killing his tormentor. To this policy Scots law admits only one exception: the law recognises that when an accused discovers that his or her partner, who owes a duty of sexual fidelity, has been unfaithful, the accused may be swept with sudden and overwhelming indignation which may lead to a violent reaction resulting in death. In such cases the law provides that, where the jury are satisfied that this is in fact what happened, they should return a verdict of culpable homicide on the ground that, because of the effect of the provocation, the accused did not act with the wicked state of mind required for murder."

From the above passages it will be apparent that Scots law has been careful to limit the circumstances in which provocation might be of relevance to the state of mind of an accused who kills someone, intentionally or otherwise. Of particular relevance to the present case is the long established principle, which has equal application today, that verbal abuse, however extreme, cannot palliate killing. As Lord Justice General Rodger explained in Drury the reasons for such a restriction in the law of provocation in Scotland are grounded in policy. If, as a matter of policy, the application of provocation is restricted in such a manner in homicide we reject the submission that a heated argument and exchanges of racial insults, threats and abuse between the parties should have any bearing upon the assessment by the jury of the appellant's state of mind when he killed the deceased, such as to influence their assessment of whether the Crown had established the dole required for murder.

[18] The second factor relied upon by counsel for the appellant was the evidence of the appellant that he armed himself for protection and that, when he did so and left the house, he had no intention to kill. While the actions of the appellant in returning to his house after the argument with the deceased and re-emerging shortly afterwards armed with an ornamental dagger might well have been relevant to the jury's assessment of his intention at that time, that was a different issue from the accused's state of mind at the stage when he stabbed the deceased. In Anderson the court rejected a criticism of the trial judge who failed to direct the jury about the alternative verdict of culpable homicide, resulting in the conviction of the accused for murder. In that case there was a single blow with a knife to the abdomen of the deceased causing a fatal heart injury. At paragraph [17] of its opinion the court stated:

"We have reached the conclusion that this appeal falls to be refused. In our opinion this is not a case in which it would have been appropriate for the trial judge to have directed the jury that it would have been open to them to return a verdict of culpable homicide on the basis the appellant had only struck one blow. Such a verdict would have been unreasonable having regard to the evidence the jury heard as to the nature of the violence the appellant used towards the deceased, which was directed at a vulnerable part of the deceased's body and in particular in the direction of his heart."

Although in the present case the trial judge did direct the jury about the alternative verdict of culpable homicide the observations of the court in Anderson might be apposite. If the jury concluded that the appellant intended to kill the deceased and, in furtherance of that intention, stabbed him in the chest cutting the deceased's aorta as a result of which the deceased died shortly thereafter, can there be any doubt that the intention was wicked, rendering this a murderous attack?

[19] The third factor upon which Miss Scott relied was that when the appellant initially brandished a knife he was in fear for himself and his family. In that regard we note that reliance is placed upon the stage at which the appellant initially brandished the knife. Even if he were in fear for himself and his family at that stage, what the jury had to assess was his state of mind at the stage that he inflicted the fatal wound upon the deceased. In that respect our comments relating to the second factor apply with equal force.

[20] Taking into account the circumstances of the present case we are not persuaded that the trial judge misdirected the jury when he told them that intending to kill someone was obviously wicked. While we have acknowledged that to be an inaccurate statement of the law, if viewed in the abstract, it was not a misdirection in the present case where no justification or mitigation for the killing was advanced. In such a situation the trial judge was correct to describe an intentional killing as obviously wicked. He clearly identified the real issue for the jury to determine as being whether they were satisfied beyond reasonable doubt that the appellant intended to kill the deceased when he stabbed him. On the assumption that the jury's verdict should be interpreted as an acceptance by them that the appellant intended to kill the deceased, no verdict other than guilty of murder was appropriate in this case having regard to the violence used and the location of the blow. Accordingly it was unnecessary and inappropriate to direct the jury that they could convict the appellant of culpable homicide even if they concluded that there had been a deliberate intention to kill (Anderson). Moreover such a direction would have been a misdirection in law in the circumstances of this case.

[21] If, of course, the jury did not accept that the appellant intended to kill the deceased when he stabbed him, the verdict must be construed as indicating that the jury were satisfied that the Crown had proved beyond reasonable doubt that the actions of the appellant had the necessary wicked recklessness required for murder. As we have already observed, the appellant does not seek to challenge the trial judge's directions in respect of "wicked recklessness". A guilty verdict on this basis is accordingly unassailable.

[22] We have considered the other criticisms of the trial judge's charge. Miss Scott acknowledged that the alleged failure to give adequate directions in relation to prior statements of certain witnesses did not amount to a miscarriage of justice; the failure had simply left the jury in a state of uncertainty as to how they should treat these statements in a situation where the evidence given at the trial was apparently more lucid than the contents of the statements taken on the night of the murder. We were not provided with any detailed specification of the alleged discrepancies but standing the acceptance by counsel for the appellant that any omission by the trial judge in this regard did not amount to a miscarriage of justice we shall reject this criticism of the charge to the jury.

[23] Two further failures were relied upon. The first was the failure of the trial judge to explain to the jury how they should assess the defence evidence given by the appellant and by an expert witness who confirmed that the fatal wound was consistent with an accident. It is a matter for the discretion of the trial judge to determine the extent to which he or she wishes to refer to the evidence (Shepherd v HMA 1996 SCCR 679). In the present case there were no special circumstances such as competing expert testimony of a complex nature requiring the judge to focus the salient points for the consideration of the jury (Liehne v HMA [2011] HCJAC 51). We do not consider that the failure in this case amounted to a misdirection. The evidence was in short compass. The issue for the jury was relatively simple. There was no need for the trial judge to give any directions about the approach to be taken to the evidence, whether it had been adduced by the Crown or on behalf of the accused.

[24] The final matter relied upon by counsel for the appellant was the absence of directions as to how the jury should apply the principles of the presumption of innocence. In particular they were not advised that they must acquit the accused if his evidence raised a reasonable doubt, even if they did not believe him. We accept that there was no specific direction to that effect and that it would have been preferable to have had such a direction. That, however, is different from saying that the failure amounted to a misdirection. As has frequently been said, it is essential to read the charge as a whole. In his charge to the jury the trial judge emphasised that the burden of proof was upon the Crown and there was no burden on the accused. For example at page 2, having explained to the jury that the judge's responsibility was to give them directions in law by which they must abide in reaching their verdict, he proceeded to set out those directions and at line 18 onwards said:

"Firstly, and principally it is for the Crown to prove its case. The burden of proving the case remains on the Crown throughout. There is a presumption of innocence in favour of an accused person like Mr Elsherkisi in this case so that means that you approach the evidence presuming the accused to be innocent until and unless the contrary is proved to your satisfaction. So it is for the Crown to prove its case. It is never for an accused person to establish his innocence. The burden of proving the case remains on the Crown throughout."

Later in the charge after directing the jury about murder and culpable homicide the trial judge continued at page 10, line 18:

"Remember of course that it is not for the accused to establish his innocence, it is for the Crown to establish to your satisfaction that the accused has been guilty either of murder or culpable homicide and that an accident as such has been disproved. Remember also that if you are left in a reasonable doubt about the matter the benefit of that must go to the accused and if that means that the accused is convicted of a lesser crime than murder or acquitted altogether then so be it."

Later at page 11, line 19 the trial judge states:

"You will have seen and you will have assessed the various eye witnesses and the Advocate Depute reviewed the evidence from the Crown point of view this morning. Discrepancies and inconsistencies in the evidence have been pointed out to you and mentioned both by the Crown and defence. It is for you to decide on credibility and reliability and for you to determine what facts or scenario has been established to your satisfaction, always remembering that the burden of proving the case remains on the Crown."

While the trial judge did not give the standard direction suggested by Miss Scott, it is apparent from the above passages that he emphasised to the jury that the burden of proving the case remained on the Crown, that the standard of proof which the Crown had to meet was proof beyond reasonable doubt and that if they had a reasonable doubt they were bound to acquit the accused. While it would undoubtedly have been preferable for the trial judge to have included a direction along the lines suggested by Miss Scott we are unable to conclude that its omission was a misdirection or has resulted in a miscarriage of justice when the charge as a whole is considered.

Decision

[25] For the foregoing reasons we shall refuse this appeal.