Appellant: Jackson, Q.C., Mitchell; Capital Defence

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

18 October 2011

[1] On 17 September 2010 at the High Court at Glasgow the appellant was found guilty on the following charges:

"(001) on 25 December 2009 at Troon Street at the junction with Lily Street, Glasgow you EDWARD JOHN DEARIE did assault Stuart Spence, ... and did strike him on the body with a knife or similar instrument and you did murder him;

(002) on 25 December 2009 at Troon Street at the junction of Lily Street, Glasgow you EDWARD JOHN DEARIE did assault Derek Hall ... and did strike him on the body with a knife or similar and to the danger of his life and you did attempt to murder him;

(003) between 25 December 2009 and 11 January 2010, both dates inclusive, at 36 Troon Street, Glasgow, 63C Lamont Drive, Irvine and elsewhere you EDWARD JOHN DEARIE having committed the crimes libelled in Charges (001) and (002) hereof and being conscious of your guilt in respect thereof did jump from a first floor window at 36 Troon Street, Glasgow and flee from the scene of said crimes, hide at 63C Lamont Drive, Irvine and attempt to conceal yourself in the attic there and this you did with intent to avoid detection, arrest and prosecution in respect of said crimes and with intent to defeat the ends of justice and you did thus attempt to defeat the ends of justice."

The jury's verdict in respect of charges 1 and 2 was by majority and in respect of charge 3 was unanimous.

[2] The appellant appeals against conviction in respect of charge 1. Two grounds of appeal, as amended, have survived the sift process. The first ground of appeal against conviction is in the following terms:

"There has been a miscarriage of justice in that the trial judge failed to give sufficient direction to the jury on the subject of culpable homicide.

The trial judge gave the standard direction on murder but not including reference to an alternative of culpable homicide at that stage of his charge. He then dealt with the defence of self defence linked to accident and informed the jury that this, if established, would result in an acquittal. He then dealt with provocation.

He informed the jury that if self defence was not established there could still be provocation and if provocation was itself established that would result in a verdict of culpable homicide rather than murder.

By dealing with the matter in this way, and in particular by not mentioning culpable homicide as an alternative in his general directions, he left the jury with the impression that culpable homicide could only arise if they found provocation to have been present."

Concise description of the events, to which the first two charges relate, is provided by the trial judge in his supplementary report to this Court of 17 March 2011 at page 2 as follows:

"The story that emerged during the trial is short but one with which the Glasgow public has become only too familiar. Two separate parties of young people passed each other on their respective ways to different celebrations on Christmas Day 2009.

Something, fairly inoffensive, was said by one of the appellant's group to the other. For whatever reason umbrage was taken by one of the deceased's friends and words were exchanged. The appellant produced a large kitchen knife and stabbed the two victims, killing one and seriously injuring the other, to his permanent disfigurement and danger of life (he lost his spleen).

The violence was not prolonged but it was extreme with horrific consequences. Mr Jackson conceded that there was little he could say in relation to the facts given the position throughout the trial, that in the murder the appellant had been acting in self defence/accident, and in the attempt he had incriminated his younger brother."

[3] The appellant's defence at the trial (he gave evidence on his own behalf) was that he assaulted nobody. In relation to the charge of murder, any blow with the knife was accidental and unintentional. He lodged a special defence of self defence and maintained that there had been provocation.

[4] Before this Court, senior counsel for the appellant, Mr Jackson, Q.C., contended that while the trial judge had charged the jury in relation to a verdict of culpable homicide, in the context of provocation in respect of charge 1, he should have gone on, when giving the standard direction on what constituted murder, to include a reference to the possibility of a verdict of culpable homicide if the jury were not satisfied that the appellant acted with evil intent. Senior counsel frankly accepted that he himself had not canvassed the possibility of a culpable homicide verdict, absent provocation, in his speech to the jury, a tactical decision on his part which he contended he was entitled to take. He, nevertheless, had anticipated, he said, that the trial judge would have given such a direction and was surprised when he did not. The evidence in the case revealed a fast moving and confused situation which would have entitled the jury to reach the conclusion that though the appellant struck the deceased with a knife he did this simply on the spur of the moment, caught up in the fast moving confrontation that was taking place and that the blow was not struck with any murderous intent. The judge should have directed the jury as to the possibility of culpable homicide on that scenario or at least left it open as a verdict available to them quite apart from provocation being established.

[5] The foregoing submission was made under reference to the case of Ferguson v HM Advocate 2009 SLT 67. In that case the Court held that a failure by a trial judge to give a direction in relation to culpable homicide as an alternative to murder when that was an obvious alternative verdict, reasonably available on the evidence, amounted to a material misdirection. Such a misdirection could arise even when neither the Crown nor the defence had conducted themselves on the basis that such a verdict was open to the jury. In Ferguson after a fight among a group of young persons had apparently come to an end and the deceased, who had fallen to the ground, was getting up, the appellant walked up to the deceased from behind and thrust a knife into his back just below the right hand shoulder blade. The deceased ran away but later collapsed. He suffered a hypoxic brain injury, caused by loss of blood, which in turn was caused by the stab wound to his back. The Court, at paragraph 37 said:

"Turning now to the implications for this case of what we have said as regards the responsibility of a trial judge, we note that the death of the deceased was brought about, not in consequence of the infliction of multiple injuries in what might normally be expected to be particularly vulnerable areas of the body, but by a single stab wound delivered to his back just below the right shoulder blade. We note that there was no suggestion in the evidence of this case of an actual intent to kill. Furthermore, the attack by the appellant appears to have been the result of a decision taken on the spur of the moment. While, on the view taken by the jury, that stabbing was undoubtedly a deliberate attack, in itself we do not consider that it necessarily gives rise to the inference of murderous intent and nothing else. The matter might be tested by asking the question of whether, on the facts of this case, any judge would be justified in withdrawing culpable homicide from the jury's considerations. In our opinion, the answer to that question must be in the negative. Thus then we consider that a direction should have been given on that alternative verdict."

[6] The decision in Ferguson was distinguished in the later case of Anderson v HM Advocate 2010 SCCR 270. The relevant facts of the case are summarised in the head note were as follows:

"The appellant was charged with murder. A fist fight had developed between the deceased and the appellant's brother. The incident had been started by the deceased who had gone out to 'sort out' the appellant and, in particular, his brother. The deceased was supported by a friend, G. G was armed with a meat cleaver, but the deceased was unarmed. The deceased challenged the appellant's brother and the two engaged in a fight using fists and feet. When it appeared that the deceased was getting the better of the appellant's brother the appellant went to his home which was close by and returned armed with a kitchen knife. There was then a confrontation between the appellant and G in which they threatened each other with their respective weapons but no blows were struck. During that confrontation the fight between the deceased and the appellant's brother came to an end and the deceased was standing up. The appellant then stepped aside from his verbal confrontation with G and stabbed the deceased once in the lower abdomen, causing a fatal heart injury."

As in the present case the appellant in that case had lodged a defence of self defence and made submissions on the possibility of a verdict of culpable homicide on the ground of provocation. The appellant appealed against conviction arguing, inter alia, that there had been a miscarriage of justice because the trial judge did not direct the jury on the possibility of a verdict of culpable homicide. In a short judgment of the Court, delivered by Lord Mackay of Drumadoon (who was a member of the Court in the case of Ferguson), the Court, at paragraph 17 said:

"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 that 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."

That decision is clear authority that in a murder prosecution the fact that death was caused by a single blow does not, of itself, automatically, in every case, demand that the trial judge gives an alternative direction on culpable homicide. While we fully accept that, following the decision in Ferguson, the trial judge cannot avoid giving a direction in relation to culpable homicide even if that has not been canvassed as a possibility by counsel on either side, if it "is an obvious alternative verdict available on the evidence" - see Ferguson at para. 36, he is equally clearly not obliged to do so if the alternative is not a serious option having regard to the evidence available. The decision on such matters is in the first instance for the judgment of the trial judge who has had the considerable advantage of hearing and seeing all the evidence in the case. As the Lord Justice Clerk pointed out in Broadley v HM Advocate 1991 SCCR 416 at page 423, every case depends on its own facts and for that reason no precise guidance can be given as to when a direction to this effect will be appropriate. The Appeal Court should, therefore, perhaps, not be over-quick to interfere with a trial judge's decision in that respect.

[7] We are satisfied that in the present case the only real context in which the issue of culpable homicide could have arisen was where there was provocation. In the present case the appellant was convicted not only of the murder of the deceased but the attempted murder of another person by stabbing him with a knife during the same incident. No appeal has been taken against that conviction and no mention of that conviction was made by senior counsel for the appellant in his submissions. It is difficult to understand why the attack on the deceased by the appellant could fall to be regarded as committed without murderous intent when the immediate further attack by him on Mr Hall with the knife was murderous in character. In addition and, in any event, having regard to the nature of the knife used which was a long serrated kitchen knife, Crown production label 6, a photograph of which we were shown and the nature of the blow administered, at the location of vulnerable parts of the deceased's body, we consider that the case is indistinguishable from that of Anderson and it would not have been appropriate for the trial judge to have directed the jury that it was open to them to reach a verdict of culpable homicide, absent provocation. This ground of appeal falls, therefore, to be refused.

[8] The second ground of appeal against conviction advanced on behalf of the appellant was in the following terms:

"There has been a miscarriage of justice in that the judge wrongly directed the jury as to the relationship between self defence and provocation. On page 14, line 17 to 24 of his charge he informed the jury that the difference between self defence and provocation was only a matter of degree and provocation arose where the standard of self defence was not met.

That is a wrong direction. While provocation may often arise where self defence has not been established the two matters are entirely separate and distinct from a legal point of view. Accordingly the legal test for self defence and the legal test for provocation are quite different and distinct and it is therefore misleading and wrong to suggest that the difference between this is only a matter of degree."

[9] Senior counsel for the appellant stressed that since provocation was very much a live issue before the jury it was essential that they should not be confused on the matter by what the trial judge had to say to them in his direction. To equiparate the defence of provocation to any extent with self defence, as he did, meant that his directions on provocation elsewhere in his charge were tainted. Self defence and provocation were completely different concepts with completely different legal consequences, if established. There had consequently been a material misdirection by the judge.

[10] Having read the judge's charge, as a whole, we are satisfied that he gave the jury proper directions regarding both self defence and provocation which should have left them with no serious doubt as to what they involved (the references to self defence are at pages 10 to 12 of the charge and the references to provocation are at pages 13 to 1, line 17 of the charge). At page 14, line 17 of his charge, the trial judge in addressing the jury said:

"You are no doubt thinking as do many lawyers I have to tell you, that these rules are almost identical to those of self defence. The difference is subtle. A successful defence will lead to an acquittal and it's all really I think a matter of degree. A finding of provocation is appropriate where the circumstances claimed to justify the act leading to the death do not in fact justify that act because they don't come up to the standard of self defence but do warrant a conviction of a lesser crime."

It is those remarks that provided the appellant with a basis for the submission that has been made on his behalf. We accept that it would have been better had the trial judge finished what he had to say on provocation at line 17 and that it was not correct to suggest that the rules on provocation and self defence are almost identical and that any difference between them is subtle. This is a good example, perhaps, of the dangers of trial judges saying more than is necessary beyond the standard directions and elaborating unnecessarily, and wrongly, on what they have clearly and correctly already said. Be that as it may, the trial judge's directions on self defence and provocation were otherwise so full and clear and, in particular, the differences between them so precisely drawn elsewhere in the judge's charge that we are satisfied that the words in question would not have caused the jury any material confusion when they retired to consider their verdicts. For these reasons we reject the second ground of appeal.

[11] The appeal against conviction, accordingly falls to be refused.