APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Mackay of Drumadoon Lord Bonomy	[2012] HCJAC 48 Appeal No: XC336/09 OPINION OF THE COURT Delivered by LORD BONOMY In NOTE OF APPEAL AGAINST CONVICTION by THOMAS GOLDIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Gilchrist, QC, C Mitchell; The Barony Law Practice

Respondent: Miller, Solicitor Advocate AD; Crown Agent

13 March 2012

Background
[1] On 31 March 2009 the appellant was convicted on the following charges:

"(1) on 2 August 2008 at 9 Lynedale Road, Maryhill, Glasgow at the common play area there, you did assault Thomas Stevenson, c/o Strathclyde Police, Maryhill Police Office, Glasgow and did repeatedly punch him on the head and body, kick him on the head, lunge at him and strike him on the body with a knife, all to his injury and you did murder him;

and

(2) on 2 August 2008 and 3 August 2008 at 9 Lynedale Road, Maryhill, Glasgow, having committed the crime libelled in charge 1 hereof and being conscious of your guilt in respect thereof, you did shave your head in order to change your appearance and wash clothing worn by you at the time of commission of this offence, and all this you did with intent to conceal or destroy evidence in respect of said crime and with intent to defeat the ends of justice and did attempt to defeat the ends of justice."

In respect of the first charge the appellant had lodged a notice of special defence of self-defence in these terms:

"Fleming for the pannel, Thomas Goldie, states that the pannel pleads not guilty and specially and without prejudice to said plea that on the occasion libelled in Charge 1 on the Indictment in so far as Thomas Goldie struggled with, pushed, punched or kicked Thomas Stephenson, he did so in self-defence."

[2] The locus of the first charge was a children's play area between two blocks of high-rise flats in the Maryhill area of Glasgow. The block at 9 Lynedale Road was adjacent to the play area and separated from it by a paved walkway. A low wall surrounded the play area, but for a gap for access which faced towards the main entrance of No 9. There was also a side entrance to No 9 which was approached by a ramp which led from the paved walkway. There was a CCTV system in operation within block 9. Cameras in the system also overlooked the play area. A compilation film, showing scenes from within block 9 and also some scenes in the play area and walkway, was shown repeatedly to various witnesses by both Crown and defence to illustrate or clarify aspects of their evidence. The footage of what occurred in the play area was taken from some little distance away as it was growing dark. As a result, what was happening could be seen in general terms, but much of the detail was indistinct.

[3] The locus of the second charge was a flat within the block at 9 Lynedale Road occupied by the appellant's fiancé, Danielle Lindsay. The deceased's aunt (Frances) occupied a flat on the same floor.

[4] On the evening of 2 August 2008, a group of adults gathered in the play area outside 9 Lynedale Road. They were drinking and talking together. The deceased, known as Tam, came out of block 9 and joined the group. Sometime after 11pm the group moved off from the play area, leaving the deceased sitting by himself on the wall facing into the play area. The appellant's father, Ronnie Goldie, detached himself from the group and returned to have a brief conversation with the deceased before catching up with the others. It was believed locally that the appellant's brother, also Ronnie Goldie, had been stabbed by the deceased.

[5] The appellant was in Danielle Lindsay's flat where he and she had spent much of the evening drinking and talking on the balcony overlooking the play area. The appellant's aunt, June Goldie, joined them after spending some time with the group in the play area. At about the time when the group left the play area, Danielle Lindsay remarked that the deceased was outside. Danielle Lindsay said that she had told the appellant that she wanted the deceased to get a battering. Thomas Goldie left the flat and then left the block by the side door. He said then, and in evidence, that he was going to see his father.

[6] In fact the appellant went towards the play area and approached the deceased who was still sitting alone on the wall facing into the play area. As the appellant entered the play area, the deceased got up and there was a confrontation between them. The deceased retreated across the play area, moving away from block 9, and the appellant moved with him. There was a struggle on the far side of the play area from block 9 and the deceased ended up on the ground. He was punched and kicked. The appellant accepted in his evidence that he had got the better of the deceased. At that point, June Goldie arrived, took hold of the appellant and led him back into block 9. The deceased got back to his feet. Danielle Lindsay also emerged from block 9. As June Goldie was leading the appellant back to the block of flats, Lindsay initially began to follow, then turned round and entered the play area. She approached the deceased and appeared to push him twice. She claimed that she had "cracked him". The appellant gave evidence that she had slapped the deceased. She then returned to block 9.

[7] The deceased picked up his jumper from the ground and entered block 9, where he took the lift to the second floor and went to his aunt's flat. By this time he was bleeding, and told his cousin who opened the door that he had been stabbed. He entered the flat and collapsed in the bathroom. Shortly thereafter he was dead.

[8] Death had been caused by a single wound which had penetrated the left chest wall in a direction mildly towards the mid-line and downwards; the pericardial sac and the left vertical of the heart had been pierced. The only other injury of any significance was a cut on the deceased's finger which could have been a defensive wound or could have been caused by accident whilst handling a sharp object such as the knife. The chest wound could have been caused by a knife which police had found lying on the ground near the entrance of the exit gap of the play area. It was possible that the deceased could have been mobile for several minutes after it had been sustained.

[9] There was no direct evidence of a knife being used. Neither June Goldie nor Danielle Lindsay saw a knife. Much of the examination and cross examination of Danielle Lindsay concerned a particular statement made by her when she was interviewed by the police. Many of her answers were designed to obscure the truth. She had been tape recorded as telling the police that she had asked the appellant: "Did yae dae him?" She tried to maintain that by "dae" she meant "batter" rather than stab. However the full recording of what she said was as follows:

"I then asked Thomas 'did yae dae him?' meaning if Thomas had stabbed Tam. Thomas never answered me the first time I asked. I could see the look on his face. That said it all. He looked guilty. I asked again 'did yae dae him?' Thomas said 'Aye'."

She continually said that that was not true, but at the end of her examination in chief conceded that what she had described had happened, thus introducing evidence of a confession by the appellant for consideration by the jury.

[10] When he got back into the flat, the appellant shaved his head with the assistance of Danielle Lindsay. He also took off his jeans and t-shirt which were placed in the washing machine which was then switched on by Danielle Lindsay and later switched off again by June Goldie. Blood deposited in the play area, on the ramp leading to the door of block 9, and inside the block was that of the deceased. Traces of his blood and fatty tissue were also found on the knife.

[11] When the appellant gave evidence, he explained that he had left the flat to see his father, but when he got outside only the deceased was there. He claimed that the deceased had said to him; "I'll give you what I gave your brother". He then lifted his t-shirt to show them that he had a knife in his possession. There was a scuffle in the course of which the appellant lunged towards the deceased to try to take the knife from him. The deceased backed off and pulled out the knife, but the appellant then tripped him so that the deceased fell onto the ground. Since the deceased was still armed with the knife, the appellant kicked him to the belly and punched him to keep him down. That was when his aunt came on the scene and led him away. At that point he did not think that the deceased had been injured in any way. At police interview and in evidence he denied stabbing the deceased and said that he had no idea how he had come by his injuries.

[12] The appellant's father gave evidence that when he had returned to the play area, as the others left, and had spoken to the deceased, the deceased had told him that he had found a knife previously lent to him by the appellant's father, and was about to show it to him when the father asked him not to do so within range of the CCTV system. However, the father did not recognise the knife which was actually recovered from the locus.

[13] The Crown case to the jury was that the appellant had deliberately left the flat in order to inflict serious harm on the deceased. The defence contention was that it was the deceased who had been armed, that that had led to the struggle and that the appellant had not stabbed the deceased and did not know who had. The injury could have been sustained accidentally during the struggle over the knife.

[14] At the hearing of the appeal, the appellant maintained two grounds of appeal in both of which it was contended that misdirection had resulted in a miscarriage of justice.

Ground 1 - Misdirection on accident
[15] The thrust of the submission of Mr Gilchrist, counsel for the appellant, was that by failing to give a specific direction to the effect that, if the knife injury was caused accidentally, the appellant must be acquitted, the trial judge had, in effect presented to the jury a menu restricted to options for conviction ranging from murder through culpable homicide to assault. In particular, it was submitted, the jury might not, as a result, have understood that they should acquit of stabbing in the event that they considered the injury could have been sustained accidentally during the struggle for the knife. Under reference to Docherty v HM Advocate 1945 JC 89 at 98, Mr Gilchrist argued that spelling every option out specifically was rendered particularly important in this case because the defence involved a combination of accident and self defence, the latter being restricted to those parts of the libel other than stabbing. By categorising those other elements as "the assault element", the trial judge had introduced a confusing distinction which could lead ordinary lay persons forming the jury to think that stabbing was something other than assault and that the appellant could be guilty of murder even though they were satisfied that there had been no assault.

[16] The task of a trial judge in directing the jury in a case such as this, where there is a variety of possible verdicts of guilty and the defence position combines a special defence of self defence with accident, is a difficult one. The primary objective must be to ensure that all the options are presented clearly and fairly. When there are various possibilities, it is tempting to recap what has been said. While that may provide reassurance to the charger, it also introduces the risk of causing confusion where clarity had already been achieved. There is also a danger in cases like this of explaining the law in a rather academic way without relating the law directly to the facts and issues in the case. On the other hand the trial judge who focuses too closely on the facts of a particular case runs the risk of omitting to include a general proposition that has application in the case but which he considers has been adequately dealt with by what he has said at another part of his charge.

[17] With the benefit of hindsight, we recognise that it would have been appropriate to include in the charge in this case a direction to the effect that, before the jury could convict of murder, they had to be satisfied beyond reasonable doubt that the appellant had assaulted the deceased, and a further direction that, if the knife had penetrated the deceased's body as a result of an accident, the appellant must be acquitted of murder. On the other hand, we agree with the Advocate depute's submission that, viewed as a whole, the trial judge's directions could have left the jury in no doubt that none of the crimes of which the appellant could have been convicted in relation to charge 1 on the indictment, namely murder, culpable homicide or assault, could be committed by accident. Having read charge 1 and explained that it contained a number of words which have particular legal significance, the trial judge then proceeded to define "assault" in the usual way as "a deliberate attack upon another person with evil intention, whether it causes harm or not". He then said this:

"Please note first of all that an assault must be something deliberate, a deliberate act. Any injuries which have been caused by accident or carelessness are not the results of an assault. The necessary degree of evil intention is the intention to attack and to cause harm to the victim".

He followed that with a direction about inferring a state of mind from what the appellant has been proved to have said or to have done.

[18] The trial judge then defined murder very clearly and concluded these directions with the following words:

"If you conclude that Thomas or Tam Stevenson was attacked by someone who intended to kill him or by someone who did not care whether he lived or died as a result of the attack, that is someone displaying the necessary degree of wicked recklessness and the crime committed would be murder".

Those directions were followed by clear directions about the option of culpable homicide which was said to be the crime,

"where death is cause by an unlawful act which was worthy of blame but where there was no deliberate intention to kill and the attacker did not act with the necessary degree of wicked recklessness that I have just described so as to make him guilty of murder".

The trial judge repeated that direction and then said:

"It means that a person has been killed in circumstances which are neither accidental nor justified, but where the wicked intention to kill or wicked recklessness required for murder is absent".

The jury were specifically directed on how to return such a verdict.

[19] The jury were then clearly directed on the option of convicting the appellant of common assault as follows:

"Now Ladies and Gentlemen, it would also be open to you to convict Mr Goldie of common assault if you concluded that he had punched or kicked Tam Stevenson but you are not satisfied beyond a reasonable doubt that he had stabbed him with the knife".

The jury were also instructed how to return such a verdict. Since it was lunchtime, the trial was adjourned and resumed with directions on self defence. The trial judge explained that that defence related only to the assault element of any verdict which they might come to in due course. In its context that reference to the "assault element" was plainly a reference to the punching and kicking libelled. That was entirely correct, since there was no material before the jury on the basis of which they could conclude that the appellant stabbed the deceased whilst acting in self defence.

[20] In his report to this court, the trial judge notes the contention in the first ground of appeal that an accidental stabbing in the course of a struggle to disarm the deceased was "the essence of the appellant's position in evidence" and goes on to comment as follows:

"I have summarised my notes of the appellant's evidence above. Far from claiming that there had been an accidental stabbing in the course of a struggle, the appellant repeatedly stated that he had not stabbed the deceased, he did not know who had, and that when he had left the scene the deceased did not appear to him to be injured. The issue of accident was raised in evidence by Mr Watson in cross examination of the pathologist, Dr Iles. She accepted that it was possible that the fatal wound could have occurred accidentally but considered such an accident to be uncommon".

In his written note of argument, Mr Gilchrist submitted that,

"- 'accidental stabbing' is to be understood as a reference to no more than the physical mechanism of the knife entering the deceased's body accidentally."

We are happy to proceed to address the issue on that basis.

[21] The directions on self defence were unexceptionable and made it plain that, if the jury were left in reasonable doubt that the appellant had acted in self defence, they must acquit him of assault.

[22] As we have indicated above, specific reference at that point to the need to be satisfied nevertheless that the appellant had assaulted the deceased by stabbing him as a prerequisite of a conviction for murder, and a further statement that, if the wound was a result of an accident, the appellant should be acquitted of assault by stabbing and murder would have been appropriate. On the other hand the trial judge had already made it clear on more that one occasion, as we have narrated above, that murder required wicked intention to kill or wicked recklessness heedless of the consequences.

[23] As it happens, the jury sought further directions on the definition of culpable homicide and following that were directed in these terms:

"Ladies and Gentlemen, culpable homicide in our law is where death is caused by some unlawful act which is blameworthy but where there was no deliberate intention to kill or where the attacker did not act with the necessary degree of wicked recklessness which is necessary to make him guilty of murder. What that means is that a person has been killed in circumstances which are not accidental and are not justified in some way, such as during a war or something like that, but where the wicked intention to kill or wicked recklessness required for murder is not present. So let me put it this way. If you believe that whoever stabbed Thomas Stevenson intended perhaps to assault him but not to kill him and you accept that death resulted from that assault, the crime committed would not be murder but culpable homicide. You will see that from what I said that the test for distinguishing between murder and culpable homicide first of all is objective and secondly relates to either deliberate intention or the necessary degree of wicked recklessness. If there is some unlawful act which causes the death of a person but that unlawful act has not been the result of either a deliberate intention to kill or the degree of wicked recklessness as I described it earlier where the person doesn't really care if the victim lived or died. If those, either of those, sorry I beg your pardon, both of those are absent but there has been an unlawful act causing death, that would constitute the crime of culpable homicide".

[24] In our opinion, reading the directions given on the various crimes of which the appellant might be convicted on charge 1, the jury could not possibly have been left in any doubt that the appellant could not be guilty of murder or culpable homicide if the penetrating knife wound was the result of an accident. In the event the jury convicted of all elements of the charge.

Ground 3 - Misdirection on the significance of the evidence of Danielle Lindsay

[25] In the note of appeal, this ground is stated as follows:

"(3) That a miscarriage of justice has also arisen given the directions of the learned trial judge as to the evidence of Crown witness No 6, Danielle Lindsay, all as set out at pages 21 to 22 of the charge. It is submitted that the learned trial justice (sic) erred in his assessment that there was sufficient evidence to convict, even if the witness Lindsay's evidence was not accepted. Instead it is submitted that senior counsel's position was correct in the circumstances of this case, particularly as the Crown case as presented to the jury in the advocate deputy's speech, founded almost entirely and certainly fundamentally on the evidence of the witness Lindsay".

Mr Gilchrist's submission to us addressed the significance of Danielle Lindsay's evidence in a way that did not readily fall within the terms of the ground of appeal, but which we were content in the circumstances to allow him to develop. There were realistically three possible ways in which the deceased could have sustained the fatal injury, by accident, by act of the appellant or by act of Danielle Lindsay. The effect of the direction by the trial judge that there was sufficient evidence to convict, even if the evidence of Lindsay was rejected, was that the only source of evidence on the basis of which Lindsay could then be excluded as responsible was the evidence of the appellant to the effect that she did not stab the deceased but only slapped him. That evidence was uncorroborated and therefore insufficient to identify the appellant as responsible by elimination of Lindsay. We hope that we have reflected this submission accurately since it was not an easy one to follow. Mr Gilchrist was anxious to emphasise that he did not submit that there was insufficient evidence for conviction, but that the direction about the evidence of Lindsay was a misdirection because it opened the door to conviction of the appellant in the absence of corroborated evidence.

[26] The trial judge explains it in his report how this matter arose. At paragraph 23 he reports:

"In the course of his speech to the jury, Mr Watson said the following whilst speaking of the evidence of Danielle Lindsay, according to my notes:

'If you don't believe Danielle, you must acquit. There is not enough evidence without that. His Lordship will tell you that'.

In its context this was a reference to what she had said to the police about the appellant admitting he had 'done' the deceased. I was so concerned about this passage in senior counsel's speech that I had the clerk of court play the relevant section of the recording of the morning's proceedings to me during lunchtime so that I could check that I had noted his words correctly. I was concerned because I did not consider that what senior counsel had said was correct as a matter of law".

As a result of the view he had formed, the trial judge directed the jury that that submission made by defence counsel was wrong in law and that there was sufficient evidence for them to convict even if they did not accept Danielle Lindsay's evidence. He specifically told them that, if they did not accept her evidence, then they would have to accept the appellant's own account that she had not stabbed the deceased and pointed to that evidence, and then reminded them that, before convicting in respect of the fatal blow, they would require to exclude Danielle Lindsay by the appellant's own evidence.

[27] In the course of his submission, Mr Gilchrist founded upon the terms of Lord Marnoch's charge to the jury which is quoted in the report of the appeal in Brown v HM Advocate 1993 SCCR 382 at 384F where he said:

"In the first place, Ladies and Gentlemen, while it is a matter for you, you may think it clear that one or other of the accused sitting in the dock stabbed the late Douglas Brown, and when I say that I mean actually physically delivered the blow with a knife or similar instrument, the blow that killed him. ...accordingly, if you were to believe one of the accused that it was the other who inflicted that fatal wound, then, assuming you also accepted evidence which corroborated that version, you would be entitled as a matter of law to convict the other person on that basis...".

While that is plainly an accurate statement of the law, it does not purport to place any particular limit on the other evidence that might provide corroboration of the identification by an accused of his co-accused as the perpetrator. What amounts to sufficient corroboration will inevitably always depend upon the circumstances. In the course of the discussion before us, there was brief reference to the situation where there are three people in one room, one is murdered, and there is insufficient evidence to identify one or other survivor as the perpetrator. In such a situation there can be no conviction unless there is corroborated evidence from which it might be inferred that both acted in concert or that one rather than the other did it. However, that evidence may be a combination of evidence of exclusion and other evidence from which actual involvement might be inferred.

[28] We are in no doubt that in this case there was sufficient evidence to entitle the jury to convict the appellant of charge 1 as libelled, even if the evidence of Danielle Lindsay was rejected in its entirety. Indeed we are inclined to the view that there was sufficient evidence even if the jury rejected the evidence of both Danielle Lindsay and the appellant in its entirety, and that the direction that, if the jury rejected the evidence of Danielle Lindsay, they could only convict if they accepted the evidence of the appellant that she did not stab the deceased was unduly favourable to the appellant. The deceased was uninjured prior to being approached by the appellant. There was evidence from a witness who was near the entrance of block 9 when the appellant left that the appellant went over to the deceased and attacked him. The images from CCTV cameras, as explained in evidence, showed the appellant involved in a physical altercation with the deceased who retreated as the appellant, who was clearly the aggressor, advanced. Blood lifts demonstrated that the fatal wound was sustained in the play area around where that altercation occurred. The knife which could have caused the fatal wound was recovered from the route from the play area back in to the block. June Goldie also gave evidence of a fight between the appellant and the deceased. On returning to the flat the appellant put his clothes in the washing machine and altered his appearance by shaving his head when apparently aware of the arrival of police and ambulance personnel. It can readily be seen that that was sufficient evidence for conviction of murder. There was more than sufficient if the appellant's evidence that Danielle Lindsay did not stab the deceased was also accepted. The evidence of Danielle Lindsay would have provided significant supplementary evidence if accepted by the jury. We are accordingly entirely satisfied that the trial judge did not misdirect the jury in relation to the significance of the evidence of Danielle Lindsay.

Decision
[29] Since neither ground argued before us was made out, we refused the appeal.