Weir MacKay v. Her Majesty’s Advocate [2020] HCJAC 24

Note of appeal against conviction and sentence:- On 3 May 2019, following a trial at Glasgow High Court, the appellant’s co-accused, Doherty, was convicted of a charge of murder and the appellant was convicted of culpable homicide. When the jury returned their verdict in relation to the appellant, they deleted most of the conduct specified in the charge. The appellant appealed against his conviction it being contended that the verdict returned was contrary to the directions of the trial judge. The appellant also appealed against the sentence of 14 years imprisonment imposed. The charge the appellant was convicted of was in the following terms:- “On 9 June 2017 at Flat 3a Kelburn Terrace, Port Glasgow you ... did assault Karen Young and did, by means unknown to the Prosecutor meantime, repeatedly inflict blunt force injuries on her head and body and you did kill her.” In relation to the appellant the jury deleted all parts of the libel which narrated the acts which had caused the victim’s death. It was submitted on behalf of the appellant that there was no evidence upon which the jury could have concluded that any injuries to the victim’s head or body made a substantial contribution to her death and the verdict returned ought to have been recorded as a verdict of assault. It was submitted that the jury had rejected the contention that the appellant was responsible for seizing the victim by her neck and compressing it, which was the principal cause of death, and had also deleted the averments of forcing open and inserting implements into her mouth, slapping her on the face and striking her on the head with a table leg or similar instrument. The verdict returned against the co-accused meant that the jury decided that he alone was responsible for the conduct causing the death. It was further submitted that the conduct for which the appellant had been held responsible by the jury had not made a substantial contribution to the death of the victim. It was submitted that the trial judge ought to have acceded to the motion made on behalf of the appellant following the verdict being returned to record the verdict as one of guilty of an assault. On behalf of the Crown it was submitted that no criticism had been made of the trial judge’s charge. In addition, the appellant had been responsible for some injuries on a vulnerable woman who had been brutally assaulted by the co-accused and the pathologist stated in her evidence that any assault upon the victim could have precipitated a cardiac arrhythmia of which there would be no evidence of at post mortem, however, the victim’s drug problems, and the manner of the assault meant that the risk of the victim suffering a cardiac arrhythmia was not a theoretical risk but a real one. It was further submitted that the blunt force injuries which the appellant was responsible for made a substantial rather than negligible contribution to the victim’s death. Here the court allowed the appeal against conviction. The court considered that there was no basis in the evidence upon which the jury could have concluded that the victim died because of a cardiac arrhythmia. The court considered that the pathologist in her evidence was describing a cardiac arrhythmia as being a theoretical possibility and simply because a pathologist does not rule out a particular mechanism does not amount to evidence that it was in fact the actual mechanism of death. The pathologist in her report stated that the compression of the neck and the drugs intoxication in combination resulted in death “... which perhaps may have been contributed to by the blunt force injuries to the head.” The court quashed the verdict of culpable homicide and substituted a verdict of guilty to assaulting the deceased by means to the prosecutor unknown, and repeatedly inflicting blunt force injuries on her head and body. The appeal against sentence will be heard at a later date.