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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Charles v. Her Majesty's Advocate [2002] ScotHC 42 (02 April 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/42.html Cite as: [2002] ScotHC 42

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Charles v. Her Majesty's Advocate [2002] ScotHC 42 (02 April 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hamilton Lord Kingarth Lord Drummond Young	Appeal No: C90/01 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL AGAINST CONVICTION by DUNCAN GRANT CHARLES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: McSherry, Solicitor Advocate; Gilfedder & McInnes

Respondent: R. McCreadie, A.D.; Crown Agent

2 April 2002

1. The appellant was convicted after trial of the murder on 20 July 2000 of Michael Hamilton. It was not disputed at the trial that the appellant had with a knife inflicted the fatal wound - an incision across the front of the deceased's neck. The appellant gave evidence to the following effect. He and the deceased had been drinking together in the former's flat. The appellant had gone from the livingroom into the kitchen to prepare some food for which he had used a knife. While there he had noticed that the music he had earlier put on in the livingroom had been turned off (presumably by the deceased). The appellant returned to the livingroom where he found the deceased sitting on the couch. He came up behind him and told him to put the music back on. At that point he struck the deceased with the knife. His intention was to hit him with the flat of the blade on the top of his head - presumably as a form of reprimand. He saw no blood and returned to the kitchen. He later returned to the livingroom by which time the deceased had collapsed due to the knife wound. The appellant had not meant to kill him. It may be added that there was evidence to the effect that both the appellant and the deceased were alcoholics, that they often drank together and that they had been drinking for a substantial period during that day.
2. In these circumstances the solicitor advocate who appeared for the appellant did not invite the jury to acquit him but invited them (and apparently only on this basis) to return a verdict of culpable homicide. The Advocate Depute invited them to return a verdict of murder, which they did. The Crown relied upon various sources of evidence which, it was contended, were inconsistent with the appellant's account of events. These included evidence that the deceased had also sustained, apparently at an earlier stage while in the deceased's flat, certain defensive knife wounds. These wounds had been treated by the application of sticking plasters, the wrappings for which were found lying near the body. The implication which the Crown sought to draw was that the fatal injury had been inflicted in a second and murderous attack with the knife by the appellant on the deceased.
3. The sole ground on which the appeal was presented was in respect of an alleged misdirection by the trial judge in his charge to the jury. At one point, in the course of explaining the difference between murder and culpable homicide, the trial judge said:

"Whether in other words the accused intended to kill Michael Hamilton or by his actions displayed the wicked recklessness necessary for the crime of murder on the one hand, or whether on the other hand this was not such a case but rather a case of negligence in assaulting Michael Hamilton with the knife and causing his death and therefore culpable homicide."

4. Mr McSherry submitted that this passage involved a misdirection since culpable homicide could not as a matter of law be constituted by a simply negligent act. Gross negligence was required. The jury might have been misled by this direction to suppose that a verdict of culpable homicide was open only where the act had been simply negligent and, not being prepared to take that view of the evidence, had returned a verdict of guilty of murder.
5. We are unable to accept that submission. The passage quarrelled with is preceded in the charge by a definition of assault and by definitions of murder and of culpable homicide in the context of an assault. The definition of assault given to the jury included a direction that the attack is something done with evil intent. The trial judge continued:

"Where such an attack causes the death of a victim then that can amount to murder or culpable homicide in certain circumstances."

He then distinguished in that context between murder and culpable homicide. Mr McSherry did not dispute the accuracy of any of these directions. In the passage immediately preceding that quarrelled with the trial judge invited the jury to consider the alternative verdicts of murder and of culpable homicide in circumstances where there was no real dispute but that there had been a deliberate act constituting an assault by the appellant with the knife on the deceased. He later reminded them of the appellant's account in evidence, namely, that he had attempted to hit the accused with the flat of the blade on the top of the head. He also gave them indisputably accurate directions as to the effect of their accepting the appellant's account or of it raising with them a reasonable doubt.

6. Whereas to lawyers the concept of "negligence" may have certain connotations and in some contexts certain distinctions may require to be made, in the context of directions to a lay jury in this case the passage in question cannot, in our view, in any way have confused or misled them. The expression used was "negligence in assaulting" the deceased. The account given in evidence by the appellant, and on the basis of which the jury were invited to return a verdict of culpable homicide, was that the accused had indeed assaulted the deceased with the knife (intending to strike him on the top of the head with the flat of the blade) but must carelessly have so wielded it as to cause the fatal injury. The jury, taking the judge's charge as a whole, would without difficulty have understood that if they accepted the appellant's account of how that injury was sustained (or were left with a reasonable doubt as to whether it might be true) the proper verdict in the circumstances was one of culpable homicide. There was, in these circumstances, no misdirection nor any miscarriage of justice. For these reasons we refused the appeal.