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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION BY RALPH GOLDIE [2020] ScotHC HCJAC_9 (31 August 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_9.html
Cite as: [2020] ScotHC HCJAC_9, 2020 SCCR 87, 2020 JC 164, [2020] HCJAC 9, 2020 GWD 8-118
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Brodie
Lord Turnbull
[2020] HCJAC 9
HCA/2017/000681/XC
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
RALPH GOLDIE
against
HER MAJESTY’S ADVOCATE
Appellant
Respondent
Appellant: Dean of Faculty, G Brown Sol Adv; John Pryde & Co (for Livingstone Brown,
Glasgow)
Respondent: M Meehan, AD; Crown Agent
31 August 2018
[1] The appellant was charged (charge 2) with murder in the following terms:
”… you …. did assault Jeremy Paradine, … and did push him on the body, cause
him to fall down a flight of stairs, throw a vacuum cleaner at him, cause said vacuum
cleaner to strike him on the head and body, repeatedly kick, stamp and jump on his
head and body, and you did murder him”
[2] After trial he was convicted by the jury in the following terms:
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”…you … did assault Jeremy Paradine, … cause him to fall down a flight of stairs,
repeatedly kick, stamp and jump on his body, and you did murder him”
[3] He was also convicted of an assault on Martin McQueenie, by repeatedly punching
and kicking him on the head and body, all to his severe injury. That charge (3) had
originally contained an averment that he “did push, kick or otherwise strike [the
complainer], cause him to fall down a flight of stairs”, but the jury deleted these, and other,
averments.
[4] After the jury announced their verdict, but before it was recorded, senior counsel
addressed the court submitting that the jury’s deletion of the word “push” rendered their
verdict inconsistent with the directions given, and self-contradictory. He submitted that the
trial judge’s directions had been to the effect that the jury had to be satisfied that the now
appellant propelled, in some way, the deceased down the stairs whereas in terms of their
verdict the jury had deleted the only method of propulsion which had been suggested;
“cause him to fall down a flight of stairs” did not, in itself, amount to an assault. Senior
counsel submitted that the trial judge should decline to accept the verdict, remind the jury of
the relevant directions and ask them to retire and reconsider their verdict. This submission
formed the basis of the argument on appeal.
The evidence
[5] The evidence showed that the deceased sustained a fatal, and an unsurvivable, head
injury caused in a fall down the stairs; the remaining injuries, whilst serious and life
threatening, did not cause the death and were inflicted after the fatal head injury caused by
the fall, once the deceased was lying at the foot of the stairs. The pathologist could not say
whether the head injury was caused by a fall, a push, an accidental nudge or a trip.
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[6] The deceased, the appellant and Martin McQueenie, had been drinking in the living
room of McQueenie’s home, which was on an upper level with the bedrooms and lavatory
being downstairs. All three were very drunk. McQueenie stated that the deceased left the
room to go to the lavatory, and the appellant followed him out of the room. McQueenie
then heard a “rumbling from down the stairs”. On investigating, he saw the appellant two
or three steps down and the deceased lying on his back at the bottom of the stairs with his
legs up on the steps at the bottom. He was not moving. The appellant said “Aw, just
fucking leave him there”, referring to the deceased. McQueenie then described an assault on
himself. Although he said he must have been kicked or pushed by the appellant, he had
previously given a statement in which he said that it was possible that he had fallen
downstairs.
[7] Evidence was led from the former wife of the deceased, now the girlfriend of the
appellant, Maryanne Paradine, who stated that the appellant “told me (the deceased) never
fell down the stairs, he pushed him.” Asked why, the appellant said that the deceased
“never fell down the stairs, I pushed him, because (the deceased) made (the witness)
homeless”. The witness then stated:
“He said he jumped and stamped over (the deceased’s) body till blood came out his
ears. He showed me – jumped with both legs on the stomach and stamped on him.
He said he’d already pushed (the deceased) down the stairs. He said that (the
deceased) was lying with his legs on the stairs, his back to the wall and was grey
looking.”
She demonstrated the position as she understood it, using her arms. She said that the
appellant kept telling her that he pushed the deceased down the stairs. He said that he went
to the toilet, picked up a hoover, threw it and it hit (the deceased) in the face. He told her
that “he jumped and stamped on (the deceased’s) body till blood came out of the nose and
out of the ears”.
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[8] Although she said he then stated “I killed your husband”, she was cross-examined
on the basis of a prior inconsistent statement, the result of which, according to the trial
judge, was that it became clear that what he had said was to the effect “I think (the deceased)
is dead”.
The trial judge’s directions
[9] The trial judge gave the jury directions as to what, in law, constitutes murder and
culpable homicide (we return to these in due course). He then reminded the jury of the
evidence of the forensic pathologist:
“She was quite clear, as I understand her evidence, and obviously it is how you
understand matters that counts, that the cause of Jeremy Paradine’s death injury was
the head injury and nothing else. … it was the head injury, occasioned by
Mr Paradine coming down the stairs at the flat, which was the only cause of his
death. And that head injury was unsurvivable.” (transcript of charge pages 20 and
21).
We understand that to be an accurate summary of the pathologist’s evidence as to cause of
death. Accordingly, evidence that the appellant repeatedly kicked, stamped and jumped on
the deceased’s body when he was at the bottom of the stairs (as the jury were to find that he
had) while very obviously relevant to assault, as libelled in charge 2, was of no relevance to
the actus reus of murder or, indeed, culpable homicide. We would take the trial judge to
have been very much aware of this, hence the emphasis on the fall as the only cause of
death, which is reflected in his subsequent directions
[10] The trial judge directed the jury on the definition of murder in general terms,
repeating exactly the words suggested in the jury manual, thus:
“The crime of murder involves the unlawful killing of another person, wickedly
intending to kill him, or acting in such a way as to show wicked recklessness as to
whether the other person 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 other person, or
he acted with wicked recklessness as to whether the other person lived or died.
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A word about each of these requirements.
Intention is a state of mind, to be inferred or deduced from what’s been proved to
have 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.
‘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
injuries inflicted, and the surrounding circumstances. It’s acting in such a way as to
show total indifference as to whether or not the other person'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’s a wicked
disregard for the consequences.
For the Crown to prove this charge, you would need to be satisfied:
(1) that the accused killed Jeremy Paradine;
(2) in doing so he acted either:
- with a wicked intention to cause death, or
- in a way which showed wicked recklessness as to Jeremy Paradine’s fate.”
[11] The trial judge made no reference to the words “push” or “cause to fall down a flight
of stairs” as averred in the libel. He did not go on to explain how the general definition
given by him might operate on the specific facts of the case, although, as we note below, he
returned to the subject towards the end of his directions in law in relation to a possible
verdict of assault.
[12] Having discussed the pathologist’s evidence and with a reminder that the advocate
depute had invited the jury to return a verdict of guilty of murder while counsel for the
defence had argued for acquittal, the trial judge then gave directions on what he described
as the two other options available to the jury: conviction of culpable homicide “in the event
that you find that the accused did indeed push, or somehow propel … Jeremy Paradine
down the stairs … obviously, if you consider Jeremy Paradine simply fell or tripped then
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you would have to acquit” (page 22); and assault, at the foot of the stairs, in the event that
the jury found that “Jeremy Paradine fell or tripped down the stairs, or ended up going
down the stairs by way of some form of accident” or that the jury had a reasonable doubt
(page 24). Given the context, it is reasonable to infer that the jury would have taken the
reference to acquittal at page 22 to mean acquittal of the murder element of charge 2, not of
the charge as a whole.
[13] The trial judge then directed the jury on the definition of culpable homicide. Again,
he did so in entirely general terms quoting verbatim the possible form of directions given in
the jury manual:
“It’s a less serious crime than murder, but it is a crime nonetheless. Culpable
homicide is causing someone’s death by an unlawful act which is culpable or
blameworthy. It’s killing someone where the accused didn’t have the wicked
intention to kill, and didn’t act with such wicked recklessness as to make him guilty
of murder. The unlawful act must be intentional or at least reckless or grossly
careless. Recklessness or gross carelessness means acting in the face of obvious risks
which were or should have been appreciated and guarded against or acting in a way
which shows a complete disregard for any potential dangers which might arise. It’s
immaterial whether death was a foreseeable result or not.
For the Crown to prove this charge, you would need to be satisfied:
(1) that the accused committed an unlawful act;
(2) that act must have been intentional, or reckless or grossly careless in the sense
I’ve defined it;
(3) that death was a direct result of the unlawful act.”
[14] In this respect the trial judge did add some words relevant to the specific
circumstances of the case, by adding:
“So, as you consider this alternative offence, if you want to proceed to conviction on
that matter you would need to be satisfied, first, that the accused committed an
unlawful act; and second, that the act must have been intentional or reckless or
grossly careless in the sense I’ve just defined it, and the death was a direct result of
the unlawful act. And the unlawful act I’m describing is a pushing or propelling, as
Mr. McConnachie described it towards the end of his remarks to you.”
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[15] After dealing with the alternative of culpable homicide, the trial judge proceeded to
deal with the final alternative of assault should the jury find that the deceased had fallen
down the stairs by way of accident, or that they simply had a reasonable doubt about the
matter. Here, he said:
“But you may consider that the Crown has proved that the accused nevertheless
committed an assault on Jeremy Paradine once he was down the stairs. And I’ve
already defined assault for you when I spoke about charge 3 a moment ago. But put
briefly, it’s an attack on the person of another with evil intent. And you will see that
the word, ‘assault’ actually features in the charge as it is libelled in line 2. And the
Crown invite you to consider that term as it is libelled to be part of the narrative of
how the crime of murder was committed by the accused. But if you choose to
convict the accused of this alternative on charge 2, that is to say assault, you would
simply be required to delete the sections in the charge about pushing Jeremy
Paradine on the body causing him to fall down stairs, and, of course you would
delete the words at the end, ‘and you did murder him’.”
[16] Having given instructions on the mechanics of returning possible verdicts, the trial
judge then turned to the evidence. He reminded the jury that the Crown relied in particular
on the evidence of Maryanne Paradine as an independent source of evidence from which
they could accept that the appellant had made a number of admissions in respect of both
charges. He directed the jury that they would need to consider what exactly the accused
had accepted in conversation with Maryanne Paradine, and if he was admitting to
something, what exactly that was (page 42). They had to be clear whether anything the
witness spoke to amounted to clear and unambiguous admissions. In relation to Maryanne
Paradine, and also Martin McQueenie, the trial judge directed the jury:
“I formally direct you that you must accept them both as credible and reliable in
their accounts to you of the crucial passages of evidence upon which the Crown rely
in order even to begin to proceed to a conviction in this case.” (page 45)
[17] The jury, after having retired, returned to court with a question about charge 3 in
relation to the averment that the appellant did "push, kick or otherwise strike him on the
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body, cause him to fa11 down a flight of stairs”. The question asked whether these were
separate points or if one followed from the other. The trial judge directed that
“These words are part of the narrative of how the Crown alleged the crime charged
was committed and if you are not satisfied that the Crown has proved any part of the
charge you can delete that section of the charge, but what’s left must define the crime
and describe how it was carried out. The words raised in the question, even if all
were deleted, would still define the charge and describe how it was carried out. But
in order to cause the complainer to fall down the stairs, some form of propulsion
would be required, such as a push or a kick or a strike.”
[18] There seems to be a non-sequitur in this aspect of the judge’s directions. This is not
the result of an error in transcription, since what he said was rehearsed with counsel prior to
the jury being brought back to court and the exact same words appear. We can only assume
that in the second last sentence the trial judge intended to direct the jury that even if the
words in the question were deleted there would remain in charge 3 sufficient specification of
an assault on Martin McQueenie. This would have been correct. In charge 2, of course, the
nomen iuris “assault” related both to the allegedly murderous attack, leading to the fall
downstairs and the fatal wound, and also to the subsequent attack at the foot of the stairs.
In that respect, if equivalent deletions were made to charge 2 a question might arise whether
what remained reflected the first as opposed to the second aspect of the charge.
The trial judge’s decision
[19] In response to the submission that the jury’s verdict did not make sense, and at the
judge’s invitation to offer a practical solution to the problem, senior counsel suggested that
the trial judge might address the jury further and ask them to reconsider. There were no
submissions for the Crown. After retiring to consider the matter, the trial judge concluded
that the jury had returned a lawful and competent verdict which should be recorded. The
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phrase “cause him to fall” was sufficient to provide specification of the necessary criminal
act for a verdict of murder.
[20] Notwithstanding the directions given in respect of the question asked in relation to
charge 3, which he now considered to be “too generous to the defence position”, he
considered that the jury’s verdict on charge 2 was in accordance with the directions which
he gave in respect of charge 2.
Submissions for the appellant
[21] By their verdict, the jury had deleted the only specification by which a murderous
assault was said to have been committed. The trial judge’s direction in answer to the
question relating to charge 3 applied with equal force in relation to the murder charge. In
these circumstances the jury’s verdict was not competent: McGeary v HMA 1991 JC 54. In
accordance with Took v HMA 1989 SLT 425 and White v HMA 1990 JC 33 the trial judge
ought to have declined to accept the verdict, reminded the jury of the relevant directions
and asked them to retire and reconsider their verdict, all as submitted to him by senior
counsel for the appellant. It was not submitted that the verdict had not been capable of
correction, had the trial judge adopted the suggestion of senior counsel for the appellant.
However, that course not having been taken, the basis upon which the appellant was
convicted of murder is not made clear.
Submissions for the Crown
[22] By its verdict the jury must have been satisfied that the appellant deliberately caused
the deceased to fall down a flight of stairs. The deletion of the word push is consistent with
the jury being satisfied that the appellant deliberately caused the deceased to fall down the
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stairs by “some form of propulsion” constituting the [deliberate] act of causing the deceased
to fall downstairs. The word “assault” was not deleted.
[23] In some cases, very little specification may be contained in the charge: for example,
“by means unknown.”
Analysis and decision
[24] We accept that of course the Crown may seek to prove a charge of murder when the
means thereof remained unknown. In those circumstances however, the crime is established
by building a circumstantial case seeking to show that it was a necessary inference from all
the known circumstances that the accused murdered the deceased. This was not such a case.
The only basis upon which a verdict of murder might reasonably follow was acceptance by
the jury of the evidence of the appellant’s alleged admission to Maryanne Paradine of
deliberately pushing the deceased down stairs. Without that evidence there was no
evidence from which death could be attributed to a deliberate act of the deceased. We reject
entirely the advocate depute’s submission that either the evidence of the pathologist or the
evidence of the appellant having followed the deceased from the room, followed by a
“rumbling” could form the basis of a finding of a deliberate act independent of the push
spoken to by Maryanne Paradine and adopted by the Crown in the framing of the
indictment. The evidence of the pathologist was basically neutral, and while, when taken
together with the evidence about the appellant following the deceased, it could have
corroborated a clear and specific admission by the appellant, neither piece of evidence on its
own is sufficient to point to death resulting from a deliberate act of the deceased. It was not
suggested that without the evidence of Maryanne Paradine there would have been a
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sufficiency of evidence for murder; and at trial the Crown clearly relied on her evidence as
the basic foundation of the case.
[25] In other circumstances, where there has been a conviction of murder or culpable
homicide it might be possible to infer that the jury has reasonably concluded that the
appellant was responsible for the death by an act of the appropriate culpability, albeit that
the act is unspecified in those parts of the charge as survive the jury’s deletions. However,
on the evidence in this case, given the fact that, as the trial judge directed the jury,
acceptance of Maryanne Paradine was a fundamental requirement for conviction of murder,
we do not consider that such an approach may properly be taken in this case. Unless the
jury accepted her evidence that the appellant admitted deliberately pushing the deceased
downstairs there was no basis upon which a verdict of murder might result. The fact that
the word “assault” remained in the charge is of no assistance, since there was a non-
murderous assault averred, of which the jury could, and did, convict. The word “cause”
does not itself carry with it any murderous implication. The deletion of the word “push”
however suggests that the jury were not satisfied on the evidence of Maryanne Paradine as
to the nature and extent of any admission by the appellant. The matter is compounded by
the directions of the trial judge in respect of the very similar wording on charge 3, where the
jury were given a clear direction that they could not delete all methods of propulsion while
leaving the words “cause him to fall down a flight of stairs” in their verdict, yet this is
exactly what they did in relation to charge 2. The verdict thus appears inconsistent with
either the direction as to the necessary approach to the evidence of Maryanne Paradine or
the supplementary directions given admittedly in respect of a different charge but in respect
of substantially the same wording. This apparent inconsistency is one which should have
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led to the trial judge taking the further action suggested by senior counsel in an effort to
resolve matters and make it clear what was the basis upon which the verdict was returned.
As is noted in Renton & Brown’s Criminal Procedure, 6th edition, para 18-89:
“If the verdict is self-contradictory, or contrary to the judge’s direction the judge
should refuse to accept it, and may require the jury to reconsider it.”
[26] Various cases are cited where that course of action has been either suggested or
taken. The circumstances in which this might be necessary are not confined to those where
the jury have deleted all specification, as occurred in Took v HMA. White v HMA was a case
in which the jury returned verdicts on two charges on the same evidence, contrary to the
approach should be followed should a jury return inconsistent verdicts on two charges
had included in its verdict an averment for which no evidence had been led. That, and other
inconsistencies, should have caused the sheriff to raise the matter with the jury at the time to
clarify their verdict. In Cameron vHMA 1999 SCCR 476, the court stated:
“It would, of course, be quite wrong, as the Crown acknowledged, for the trial judge
to seek to influence the jury in any way. It is, however, part of his function to assist
the jury to deliver an unambiguous and clear verdict to which they can all assent as
the verdict of the jury. It may happen, as in the case of Took v HM Advocate, that it is
clear that the verdict delivered orally in respect of a single charge is not one which it
is open to the jury to return. In such circumstances the trial judge may invite the jury
to retire if they wish to reconsider their verdict and he will usually consider it
appropriate to give them some assistance so that they may understand what the
difficulty is, so that they can reconsider the matter and ensure that, through the
foreman, the jury's intended verdict is correctly delivered. It may be, as in the
present case and in White, that when the verdict of the jury on the libel as a whole is
delivered through the mouth of the foreman, a confusion, incompetency or
inconsistency emerges. We see no reason why a different practice should be adopted
when that happens.”
[27] The verdict of a jury is, of course, not given in isolation, but as part of a framework
which includes the speeches of counsel and the directions of the trial judge (Beggs v HMA
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2010 SCCR 681, para 207). From this framework, including the evidence and the libel, the
basis of any conviction should be discernible (ibid). This may not follow if the trial judge’s
directions are incomplete, fail to identify all the matters which the Crown required to
establish for conviction, or are in any way confusing. In the present case, the charge is not
well structured, and the directions on murder and culpable homicide are given in the most
general terms without reference to the specifics of the case. This was a case where a verdict
of either murder or culpable homicide required to rest on exactly the same, single, deliberate
and unlawful act of the appellant, namely an assault, and in particular a push on the body
resulting in a fall downstairs. In these circumstances it was very important for the jury to
have clear directions on this matter, and to the circumstances in which they might choose to
return one verdict rather than another; it should have been straightforward for the trial
judge to provide the jury with an elementary “route to verdict”, the existence of which
would have helped render any verdict understandable.
[28] It is not entirely clear that the trial judge truly appreciated this. Having introduced
the subject of alternative verdicts (page 22) the trial judge went on to say:
“Let me be specific, you may consider that there was conduct, such as a push, by the
accused at the top of the stairs which bears criminal responsibility but that this
conduct falls short of the crime of murder as I have just described that to you. In
such circumstances, you would require to consider the alternative offence of culpable
homicide.”
It is difficult to see what the jury would have made of this. The wording of this part of the
charge is entirely divorced from the terms of the libel in the case. The latter, and the
evidence, was wholly predicated on there having been an assault by the appellant, in the
form of a push: there was no question of any other “conduct” on his part which might have
resulted in either murder or culpable homicide. There is no recognition that the basis of the
case – whether murder or culpable homicide – is a deliberate assault in the form of a push
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which caused the deceased to fall down the stairs. The matter was compounded by the fact
that the directions on culpable homicide contained references to recklessness or gross
carelessness, which relate to a form of culpable homicide which was never in issue in the
case.
[29] This reference to “conduct” is repeated in the trial judge’s report. When counsel
made his submission as to the jury’s verdict, he referred in particular to the direction which
the trial judge gave in respect of charge 3, and the need for some form of propulsion to
remain specified in the verdict if the jury intended to convict the appellant of that part of the
charge which averred “cause him to fall down a flight of stairs”. He submitted that in the
absence of a mode of propulsion the verdict did not make sense. The trial judge at first
appears to have been sympathetic to this submission, since he said:
“Yes. I think there’s substance in your point and it ties up with the directions I gave
in my charge and also, albeit in a different charge, the supplementary direction I
gave…. although [on] the same issue, in respect of charge 3”.
[30] In the first part of this remark the trial judge was presumably thinking of the
directions he gave in relation to the evidence of Maryanne Paradine and the need to be clear
as to the terms of any admission and the requirement for the jury to accept her evidence on
critical matters before they could consider convicting of murder.
[31] In his report, the trial judge states :
“I made it clear to the jury that in the event they concluded that … the deceased
simply fell or tripped, they must acquit or consider the alternative verdict of an
assault at the bottom of the stairs. I also gave a direction on culpable homicide which
referred to a finding on the part of the jury of the appellant “pushing or propelling”
the deceased down the stairs (page 24) and to “conduct, such as a push” by the
appellant at the top of the stairs (page 22). In these circumstances therefore the
phrase in the libel of charge 2 “cause him to fall” was sufficient to cover the
necessary criminal actus for the crime the jury had duly by their verdict found to
have been established.”
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[32] The fact that these directions relate only to culpable homicide or assault perhaps
highlights the fact that the trial judge failed to give any directions about how his directions
on murder could operate on the facts of the case, and suggests that he had not fully
appreciated the extent to which either verdict depended on proof of an assault, as opposed
to mere “conduct”.
[33] We appreciate that the directions given by the trial judge were lifted entirely from
a slavish and unthinking repetition of what is suggested in the Jury Manual as merely a
possible form of directions will not necessarily
“…be sufficient to alert the jury as to how they should go about their decision-
making in every case. Effective jury directions must engage with the specifics of the
particular trial and the particular issues that arise for decision.”
The trial judge has a duty
“…to tailor the charge to the specific circumstances of the case, all with a view to
giving proper and clear directions to the jury. Simply to repeat the terms of the
manual is no guarantee against a misdirection appeal. In his foreword to the earlier
edition of the manual, the then Lord President , Lord Hamilton, emphasised that
every charge is unique. … The manual is no more than a first port of call, providing
a useful, but non‑authoritative, checklist of points to bear in mind. Juries are entitled
to a bespoke charge adapted to the evidence and to the particular issues arising in
the trial.” (McGartland v HMA 2015 SCCR per Lord Malcolm, para 31)
[34] Given the evidence of the forensic pathologist, what was required from the trial
judge was a clear direction to the jury that in order for them to convict of either murder or
culpable homicide they had to be satisfied that the appellant had committed an assault on
the deceased which had caused him to fall down the stairs. Because the only form of assault
which had been suggested in the evidence was a deliberate push, as spoken to by Maryanne
Paradine as having been admitted by the appellant, to convict of either murder or culpable
homicide the jury therefore had to be satisfied that the appellant had deliberately pushed the
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deceased and that deliberate push had caused the deceased to fall down the stairs. Only if
the jury were so satisfied did the further question arise, whether it had been established that
the appellant had the necessary mens rea for murder in the form of a wicked intention to kill
or wicked recklessness. For all his quotations from the jury manual, the trial judge did not
give such a direction. It may well be that this failure to emphasise the critical importance of
the allegation of a push contributed to confusion on the part of the jury as to precisely what
required to be proved. At all events, they returned a verdict which we consider is both self-
contradictory and inconsistent with the directions that the judge did give. That was
apparent at the time the verdict was returned and called for clarification. The trial judge
should have taken the course of action urged upon him by senior counsel for the appellant.
His failure to do so leaves a verdict from which, taking into account both the evidence and
the judge’s charge, the basis of the appellant’s conviction for murder cannot reasonably be
discerned. We are satisfied that the result is a miscarriage of justice and the appeal must
succeed.