Mark Moncrieff and Paul McCann v. Her Majesty’s Advocate [2020] HCJAC 20



Note of appeal against conviction:- Following a trial at the High Court the appellants were convicted of a charge of murder by repeatedly punching and kicking the deceased on the head and body, repeatedly striking him on the head and body with a hammer and repeatedly stabbing him on the body with a knife or similar implement. The first appellant accepted during the trial that he inflicted the fatal blow with the knife but stated that he had been acting in self-defence. It was not disputed that the second appellant had been in possession of the hammer. A third accused, Domenica Smith, was acquitted of the murder. At the trial senior counsel for the first appellant had invited the jury to acquit him of murder on the basis of self-defence but if they did not acquit then they should convict him of culpable homicide on account of either provocation or that whilst he had inflicted the fatal blow it was neither intentional nor did it show the element of wicked recklessness required for murder. It was submitted that the trial judge misdirected the jury in relation to inviting the jury to consider whether or not the second appellant was involved at that stage of an attack on the deceased with a hammer. It was submitted that was a misdirection since he did not direct the jury that they would need to consider whether or not the first appellant was aware of the second appellant having and using a hammer. It had been the first appellant’s position in evidence that he did not know where the second appellant was at the point when he was involved with the deceased. In addition, it was submitted the trial judge misrepresented the first appellant’s position in his directions to the jury. In his charge the trial judge said that it was accepted that Moncrieff did not say that he had lost his temper or say he had acted in hot blood, however, it was submitted that it had not been conceded that the first appellant did not act in hot blood and, in any event, the fact that he had not said he acted in hot blood did not exclude provocation. On behalf of the Crown it was submitted that the parts of the charge which were criticised should not be looked at in isolation and regard should be had to the contents of the entire charge, in particular, the full and clear directions which had been given on concert. In relation to the second ground of appeal it was submitted that the trial judge did not misrepresent the first appellant’s position. He did not say that the first appellant had not acted in hot blood but, rather, that the first appellant had said in evidence that he did not lose his temper or act in hot blood. Here the court refused the appeal. In relation to the first ground of appeal the court pointed to the full and detailed directions that were given on concert both in relation to planned and spontaneous concert. The court considered that in light of these directions the jury would have been in no doubt that the first appellant’s involvement could not be assessed having regard to something that he was unaware of. In relation to the second ground of appeal the court noted that the judge did not rule out the possibility that the jury might find the appellant acted in hot blood because if he had he would have withdrawn provocation from the jury. In relation to the Note of Appeal presented on behalf of the second appellant, it depended upon the outcome of the first appellant’s appeal and in light of the decision on his appeal the second appellant’s appeal also failed.

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