Ralph Goldie v. Her Majesty’s Advocate [2020] HCJAC 9

Description

Note of appeal against conviction:- Following a trial at the High Court the appellant was convicted of the following charge:- ”...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” The jury deleted the averment “and did push him on the body” immediately preceding the words “cause him” in the charge. When the jury announced their verdict, prior to it being recorded, senior counsel for the appellant submitted that the jury’s deletion of the word “push” rendered their verdict inconsistent with the directions given and that it was self-contradictory. It was submitted that the trial judge’s directions had been to the effect that the jury had to be satisfied that the appellant propelled the deceased down the stairs whereas in terms of their verdict the jury had deleted the only method of propulsion which had been libelled. It was further submitted that “cause him to fall down a flight of stairs” did not amount to an assault. In those circumstances senior counsel for the appellant had invited the trial judge to decline to accept the verdict, give further directions and instruct the jury to reconsider their verdict. The trial judge took the view that the jury had returned a lawful and competent verdict which should be recorded deciding that “cause him to fall” was sufficient specification for a criminal act resulting in murder. The appellant appealed against his conviction on the basis of what had been submitted on his behalf by senior counsel at the conclusion of the trial. On behalf of the Crown it was submitted that the jury must have been satisfied that the appellant had deliberately caused the deceased to fall down the flight of stairs by some form of propulsion. Here the court allowed the appeal and quashed the conviction. The court recognised that the Crown may, by building a circumstantial case, seek to prove a charge of murder when the means of that remained unknown, however, that was not the position in the present case as the only basis upon which the jury could bring home the verdict of murder was if the jury accepted the evidence of a witness who spoke to the appellant making an admission of deliberately pushing the deceased down the stairs. The court did not accept that the word “assault” carried with it any implication of murder and by returning the verdict in the way they did it appeared the jury were not satisfied on the evidence of the witness that the appellant had made the admission attributed to him. In addition, the court noted that whilst the trial judge gave a specific direction in relation to charge 3 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 that is what the jury did in relation to charge 2. The court considered that the verdict was inconsistent with the directions given. The court considered that the trial judge ought to have followed the course suggested by senior counsel for the appellant and decline to accept the verdict, give further directions and instruct the jury to reconsider their verdict. The court noted that whilst the trial judge’s directions had been lifted from the jury manual the court reiterated that slavish and unthinking repetition of what is contained in the jury manual is to be avoided. In relation to the directions in relation to murder/culpable homicide, the absence of a direction to the jury that they had to be satisfied that the appellant had deliberately pushed the deceased and that deliberate push had caused the deceased to fall down the stairs, then consideration of the issue of mens rea re murder/culpable homicide could only arise if the jury were satisfied that there had been a push. In the circumstances the court considered that the verdict was one which, having regard to the evidence and the judge’s charge, was unclear and a miscarriage of justice had occurred.