APPEAL AGAINST CONVICTION BY RALPH GOLDIE [2020] ScotHC HCJAC

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Appellant: Dean of Faculty, G Brown Sol Adv; John Pryde & Co (for Livingstone Brown,

[1] The appellant was charged (charge 2) with murder in the following terms:

”… you …. did assault Jeremy Paradine, … and did push him on the body, cause

him to fall down a flight of stairs, throw a vacuum cleaner at him, cause said vacuum

cleaner to strike him on the head and body, repeatedly kick, stamp and jump on his

[2] After trial he was convicted by the jury in the following terms:

”…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”

[3] He was also convicted of an assault on Martin McQueenie, by repeatedly punching

and kicking him on the head and body, all to his severe injury. That charge (3) had

originally contained an averment that he “did push, kick or otherwise strike [the

complainer], cause him to fall down a flight of stairs”, but the jury deleted these, and other,

[4] After the jury announced their verdict, but before it was recorded, senior counsel

addressed the court submitting that the jury’s deletion of the word “push” rendered their

verdict inconsistent with the directions given, and self-contradictory. He submitted that the

trial judge’s directions had been to the effect that the jury had to be satisfied that the now

appellant propelled, in some way, the deceased down the stairs whereas in terms of their

verdict the jury had deleted the only method of propulsion which had been suggested;

“cause him to fall down a flight of stairs” did not, in itself, amount to an assault. Senior

counsel submitted that the trial judge should decline to accept the verdict, remind the jury of

the relevant directions and ask them to retire and reconsider their verdict. This submission

[5] The evidence showed that the deceased sustained a fatal, and an unsurvivable, head

injury caused in a fall down the stairs; the remaining injuries, whilst serious and life

threatening, did not cause the death and were inflicted after the fatal head injury caused by

the fall, once the deceased was lying at the foot of the stairs. The pathologist could not say

whether the head injury was caused by a fall, a push, an accidental nudge or a trip.

[6] The deceased, the appellant and Martin McQueenie, had been drinking in the living

room of McQueenie’s home, which was on an upper level with the bedrooms and lavatory

being downstairs. All three were very drunk. McQueenie stated that the deceased left the

room to go to the lavatory, and the appellant followed him out of the room. McQueenie

then heard a “rumbling from down the stairs”. On investigating, he saw the appellant two

or three steps down and the deceased lying on his back at the bottom of the stairs with his

legs up on the steps at the bottom. He was not moving. The appellant said “Aw, just

fucking leave him there”, referring to the deceased. McQueenie then described an assault on

himself. Although he said he must have been kicked or pushed by the appellant, he had

previously given a statement in which he said that it was possible that he had fallen

[7] Evidence was led from the former wife of the deceased, now the girlfriend of the

appellant, Maryanne Paradine, who stated that the appellant “told me (the deceased) never

fell down the stairs, he pushed him.” Asked why, the appellant said that the deceased

“never fell down the stairs, I pushed him, because (the deceased) made (the witness)

“He said he jumped and stamped over (the deceased’s) body till blood came out his

ears. He showed me – jumped with both legs on the stomach and stamped on him.

He said he’d already pushed (the deceased) down the stairs. He said that (the

deceased) was lying with his legs on the stairs, his back to the wall and was grey

She demonstrated the position as she understood it, using her arms. She said that the

appellant kept telling her that he pushed the deceased down the stairs. He said that he went

to the toilet, picked up a hoover, threw it and it hit (the deceased) in the face. He told her

that “he jumped and stamped on (the deceased’s) body till blood came out of the nose and

[8] Although she said he then stated “I killed your husband”, she was cross-examined

on the basis of a prior inconsistent statement, the result of which, according to the trial

judge, was that it became clear that what he had said was to the effect “I think (the deceased)

[9] The trial judge gave the jury directions as to what, in law, constitutes murder and

culpable homicide (we return to these in due course). He then reminded the jury of the

“She was quite clear, as I understand her evidence, and obviously it is how you

understand matters that counts, that the cause of Jeremy Paradine’s death injury was

the head injury and nothing else. … it was the head injury, occasioned by

Mr Paradine coming down the stairs at the flat, which was the only cause of his

death. And that head injury was unsurvivable.” (transcript of charge pages 20 and

We understand that to be an accurate summary of the pathologist’s evidence as to cause of

death. Accordingly, evidence that the appellant repeatedly kicked, stamped and jumped on

the deceased’s body when he was at the bottom of the stairs (as the jury were to find that he

had) while very obviously relevant to assault, as libelled in charge 2, was of no relevance to

the actus reus of murder or, indeed, culpable homicide. We would take the trial judge to

have been very much aware of this, hence the emphasis on the fall as the only cause of

[10] The trial judge directed the jury on the definition of murder in general terms,

“The crime of murder involves the unlawful killing of another person, wickedly

intending to kill him, or acting in such a way as to show wicked recklessness as to

whether the other person lives or dies. Proof of motive isn’t necessary, but it must be

shown that the accused either had a wicked intention of killing the other person, or

he acted with wicked recklessness as to whether the other person lived or died.

Intention is a state of mind, to be inferred or deduced from what’s been proved to

have been said or done. ‘Wicked’ in the context of intention has no particular legal

significance. It just has its ordinary meaning. Intending to kill someone is obviously

‘Wicked recklessness’ is also something to be inferred from what’s been proved to

have been said and done, and from the nature of the attack and the severity of the

injuries inflicted, and the surrounding circumstances. It’s acting in such a way as to

show total indifference as to whether or not the other person's death results. It

involves committing an attack of such severity that it could easily have led to death

and being completely indifferent to whether that might result. It’s a wicked

For the Crown to prove this charge, you would need to be satisfied:

- in a way which showed wicked recklessness as to Jeremy Paradine’s fate.”

[11] The trial judge made no reference to the words “push” or “cause to fall down a flight

of stairs” as averred in the libel. He did not go on to explain how the general definition

given by him might operate on the specific facts of the case, although, as we note below, he

returned to the subject towards the end of his directions in law in relation to a possible

[12] Having discussed the pathologist’s evidence and with a reminder that the advocate

depute had invited the jury to return a verdict of guilty of murder while counsel for the

defence had argued for acquittal, the trial judge then gave directions on what he described

as the two other options available to the jury: conviction of culpable homicide “in the event

that you find that the accused did indeed push, or somehow propel … Jeremy Paradine

down the stairs … obviously, if you consider Jeremy Paradine simply fell or tripped then

you would have to acquit” (page 22); and assault, at the foot of the stairs, in the event that

the jury found that “Jeremy Paradine fell or tripped down the stairs, or ended up going

down the stairs by way of some form of accident” or that the jury had a reasonable doubt

(page 24). Given the context, it is reasonable to infer that the jury would have taken the

reference to acquittal at page 22 to mean acquittal of the murder element of charge 2, not of

[13] The trial judge then directed the jury on the definition of culpable homicide. Again,

he did so in entirely general terms quoting verbatim the possible form of directions given in

“It’s a less serious crime than murder, but it is a crime nonetheless. Culpable

homicide is causing someone’s death by an unlawful act which is culpable or

blameworthy. It’s killing someone where the accused didn’t have the wicked

intention to kill, and didn’t act with such wicked recklessness as to make him guilty

of murder. The unlawful act must be intentional or at least reckless or grossly

careless. Recklessness or gross carelessness means acting in the face of obvious risks

which were or should have been appreciated and guarded against or acting in a way

which shows a complete disregard for any potential dangers which might arise. It’s

For the Crown to prove this charge, you would need to be satisfied:

(2) that act must have been intentional, or reckless or grossly careless in the sense

[14] In this respect the trial judge did add some words relevant to the specific

“So, as you consider this alternative offence, if you want to proceed to conviction on

that matter you would need to be satisfied, first, that the accused committed an

unlawful act; and second, that the act must have been intentional or reckless or

grossly careless in the sense I’ve just defined it, and the death was a direct result of

the unlawful act. And the unlawful act I’m describing is a pushing or propelling, as

Mr. McConnachie described it towards the end of his remarks to you.”

[15] After dealing with the alternative of culpable homicide, the trial judge proceeded to

deal with the final alternative of assault should the jury find that the deceased had fallen

down the stairs by way of accident, or that they simply had a reasonable doubt about the

“But you may consider that the Crown has proved that the accused nevertheless

committed an assault on Jeremy Paradine once he was down the stairs. And I’ve

already defined assault for you when I spoke about charge 3 a moment ago. But put

briefly, it’s an attack on the person of another with evil intent. And you will see that

the word, ‘assault’ actually features in the charge as it is libelled in line 2. And the

Crown invite you to consider that term as it is libelled to be part of the narrative of

how the crime of murder was committed by the accused. But if you choose to

convict the accused of this alternative on charge 2, that is to say assault, you would

simply be required to delete the sections in the charge about pushing Jeremy

Paradine on the body causing him to fall down stairs, and, of course you would

[16] Having given instructions on the mechanics of returning possible verdicts, the trial

judge then turned to the evidence. He reminded the jury that the Crown relied in particular

on the evidence of Maryanne Paradine as an independent source of evidence from which

they could accept that the appellant had made a number of admissions in respect of both

charges. He directed the jury that they would need to consider what exactly the accused

had accepted in conversation with Maryanne Paradine, and if he was admitting to

something, what exactly that was (page 42). They had to be clear whether anything the

witness spoke to amounted to clear and unambiguous admissions. In relation to Maryanne

Paradine, and also Martin McQueenie, the trial judge directed the jury:

“I formally direct you that you must accept them both as credible and reliable in

their accounts to you of the crucial passages of evidence upon which the Crown rely

in order even to begin to proceed to a conviction in this case.” (page 45)

[17] The jury, after having retired, returned to court with a question about charge 3 in

relation to the averment that the appellant did "push, kick or otherwise strike him on the

body, cause him to fa11 down a flight of stairs”. The question asked whether these were

separate points or if one followed from the other. The trial judge directed that

“These words are part of the narrative of how the Crown alleged the crime charged

was committed and if you are not satisfied that the Crown has proved any part of the

charge you can delete that section of the charge, but what’s left must define the crime

and describe how it was carried out. The words raised in the question, even if all

were deleted, would still define the charge and describe how it was carried out. But

in order to cause the complainer to fall down the stairs, some form of propulsion

[18] There seems to be a non-sequitur in this aspect of the judge’s directions. This is not

the result of an error in transcription, since what he said was rehearsed with counsel prior to

the jury being brought back to court and the exact same words appear. We can only assume

that in the second last sentence the trial judge intended to direct the jury that even if the

words in the question were deleted there would remain in charge 3 sufficient specification of

an assault on Martin McQueenie. This would have been correct. In charge 2, of course, the

nomen iuris “assault” related both to the allegedly murderous attack, leading to the fall

downstairs and the fatal wound, and also to the subsequent attack at the foot of the stairs.

In that respect, if equivalent deletions were made to charge 2 a question might arise whether

what remained reflected the first as opposed to the second aspect of the charge.

[19] In response to the submission that the jury’s verdict did not make sense, and at the

judge’s invitation to offer a practical solution to the problem, senior counsel suggested that

the trial judge might address the jury further and ask them to reconsider. There were no

submissions for the Crown. After retiring to consider the matter, the trial judge concluded

that the jury had returned a lawful and competent verdict which should be recorded. The

phrase “cause him to fall” was sufficient to provide specification of the necessary criminal

[20] Notwithstanding the directions given in respect of the question asked in relation to

charge 3, which he now considered to be “too generous to the defence position”, he

considered that the jury’s verdict on charge 2 was in accordance with the directions which

[21] By their verdict, the jury had deleted the only specification by which a murderous

assault was said to have been committed. The trial judge’s direction in answer to the

question relating to charge 3 applied with equal force in relation to the murder charge. In

these circumstances the jury’s verdict was not competent: McGeary v HMA 1991 JC 54. In

accordance with Took v HMA 1989 SLT 425 and White v HMA 1990 JC 33 the trial judge

ought to have declined to accept the verdict, reminded the jury of the relevant directions

and asked them to retire and reconsider their verdict, all as submitted to him by senior

counsel for the appellant. It was not submitted that the verdict had not been capable of

correction, had the trial judge adopted the suggestion of senior counsel for the appellant.

However, that course not having been taken, the basis upon which the appellant was

[22] By its verdict the jury must have been satisfied that the appellant deliberately caused

the deceased to fall down a flight of stairs. The deletion of the word push is consistent with

the jury being satisfied that the appellant deliberately caused the deceased to fall down the

stairs by “some form of propulsion” constituting the [deliberate] act of causing the deceased

[23] In some cases, very little specification may be contained in the charge: for example,

in Gilroy v HMA 2013 JC 163, the indictment libelled that the accused murdered the deceased

[24] We accept that of course the Crown may seek to prove a charge of murder when the

means thereof remained unknown. In those circumstances however, the crime is established

by building a circumstantial case seeking to show that it was a necessary inference from all

the known circumstances that the accused murdered the deceased. This was not such a case.

The only basis upon which a verdict of murder might reasonably follow was acceptance by

the jury of the evidence of the appellant’s alleged admission to Maryanne Paradine of

deliberately pushing the deceased down stairs. Without that evidence there was no

evidence from which death could be attributed to a deliberate act of the deceased. We reject

entirely the advocate depute’s submission that either the evidence of the pathologist or the

evidence of the appellant having followed the deceased from the room, followed by a

“rumbling” could form the basis of a finding of a deliberate act independent of the push

spoken to by Maryanne Paradine and adopted by the Crown in the framing of the

indictment. The evidence of the pathologist was basically neutral, and while, when taken

together with the evidence about the appellant following the deceased, it could have

corroborated a clear and specific admission by the appellant, neither piece of evidence on its

own is sufficient to point to death resulting from a deliberate act of the deceased. It was not

suggested that without the evidence of Maryanne Paradine there would have been a

sufficiency of evidence for murder; and at trial the Crown clearly relied on her evidence as

[25] In other circumstances, where there has been a conviction of murder or culpable

homicide it might be possible to infer that the jury has reasonably concluded that the

appellant was responsible for the death by an act of the appropriate culpability, albeit that

the act is unspecified in those parts of the charge as survive the jury’s deletions. However,

on the evidence in this case, given the fact that, as the trial judge directed the jury,

acceptance of Maryanne Paradine was a fundamental requirement for conviction of murder,

we do not consider that such an approach may properly be taken in this case. Unless the

jury accepted her evidence that the appellant admitted deliberately pushing the deceased

downstairs there was no basis upon which a verdict of murder might result. The fact that

the word “assault” remained in the charge is of no assistance, since there was a non-

murderous assault averred, of which the jury could, and did, convict. The word “cause”

does not itself carry with it any murderous implication. The deletion of the word “push”

however suggests that the jury were not satisfied on the evidence of Maryanne Paradine as

to the nature and extent of any admission by the appellant. The matter is compounded by

the directions of the trial judge in respect of the very similar wording on charge 3, where the

jury were given a clear direction 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, yet this is

exactly what they did in relation to charge 2. The verdict thus appears inconsistent with

either the direction as to the necessary approach to the evidence of Maryanne Paradine or

the supplementary directions given admittedly in respect of a different charge but in respect

of substantially the same wording. This apparent inconsistency is one which should have

led to the trial judge taking the further action suggested by senior counsel in an effort to

resolve matters and make it clear what was the basis upon which the verdict was returned.

As is noted in Renton & Brown’s Criminal Procedure, 6th edition, para 18-89:

“If the verdict is self-contradictory, or contrary to the judge’s direction the judge

should refuse to accept it, and may require the jury to reconsider it.”

[26] Various cases are cited where that course of action has been either suggested or

taken. The circumstances in which this might be necessary are not confined to those where

the jury have deleted all specification, as occurred in Took v HMA. White v HMA was a case

in which the jury returned verdicts on two charges on the same evidence, contrary to the

directions of the trial judge. In Whyte v HMA 2000 SLT 544 the court observed that this

approach should be followed should a jury return inconsistent verdicts on two charges

dependant on each other for mutual corroboration. In Glover v HMA 2014 SCCR 68 the jury

had included in its verdict an averment for which no evidence had been led. That, and other

inconsistencies, should have caused the sheriff to raise the matter with the jury at the time to

clarify their verdict. In Cameron vHMA 1999 SCCR 476, the court stated:

“It would, of course, be quite wrong, as the Crown acknowledged, for the trial judge

to seek to influence the jury in any way. It is, however, part of his function to assist

the jury to deliver an unambiguous and clear verdict to which they can all assent as

the verdict of the jury. It may happen, as in the case of Took v HM Advocate, that it is

clear that the verdict delivered orally in respect of a single charge is not one which it

is open to the jury to return. In such circumstances the trial judge may invite the jury

to retire if they wish to reconsider their verdict and he will usually consider it

appropriate to give them some assistance so that they may understand what the

difficulty is, so that they can reconsider the matter and ensure that, through the

foreman, the jury's intended verdict is correctly delivered. It may be, as in the

present case and in White, that when the verdict of the jury on the libel as a whole is

delivered through the mouth of the foreman, a confusion, incompetency or

inconsistency emerges. We see no reason why a different practice should be adopted

[27] The verdict of a jury is, of course, not given in isolation, but as part of a framework

which includes the speeches of counsel and the directions of the trial judge (Beggs v HMA

2010 SCCR 681, para 207). From this framework, including the evidence and the libel, the

basis of any conviction should be discernible (ibid). This may not follow if the trial judge’s

directions are incomplete, fail to identify all the matters which the Crown required to

establish for conviction, or are in any way confusing. In the present case, the charge is not

well structured, and the directions on murder and culpable homicide are given in the most

general terms without reference to the specifics of the case. This was a case where a verdict

of either murder or culpable homicide required to rest on exactly the same, single, deliberate

and unlawful act of the appellant, namely an assault, and in particular a push on the body

resulting in a fall downstairs. In these circumstances it was very important for the jury to

have clear directions on this matter, and to the circumstances in which they might choose to

return one verdict rather than another; it should have been straightforward for the trial

judge to provide the jury with an elementary “route to verdict”, the existence of which

[28] It is not entirely clear that the trial judge truly appreciated this. Having introduced

the subject of alternative verdicts (page 22) the trial judge went on to say:

“Let me be specific, you may consider that there was conduct, such as a push, by the

accused at the top of the stairs which bears criminal responsibility but that this

conduct falls short of the crime of murder as I have just described that to you. In

such circumstances, you would require to consider the alternative offence of culpable

It is difficult to see what the jury would have made of this. The wording of this part of the

charge is entirely divorced from the terms of the libel in the case. The latter, and the

evidence, was wholly predicated on there having been an assault by the appellant, in the

form of a push: there was no question of any other “conduct” on his part which might have

resulted in either murder or culpable homicide. There is no recognition that the basis of the

case – whether murder or culpable homicide – is a deliberate assault in the form of a push

which caused the deceased to fall down the stairs. The matter was compounded by the fact

that the directions on culpable homicide contained references to recklessness or gross

carelessness, which relate to a form of culpable homicide which was never in issue in the

[29] This reference to “conduct” is repeated in the trial judge’s report. When counsel

made his submission as to the jury’s verdict, he referred in particular to the direction which

the trial judge gave in respect of charge 3, and the need for some form of propulsion to

remain specified in the verdict if the jury intended to convict the appellant of that part of the

charge which averred “cause him to fall down a flight of stairs”. He submitted that in the

absence of a mode of propulsion the verdict did not make sense. The trial judge at first

appears to have been sympathetic to this submission, since he said:

“Yes. I think there’s substance in your point and it ties up with the directions I gave

in my charge and also, albeit in a different charge, the supplementary direction I

gave…. although [on] the same issue, in respect of charge 3”.

[30] In the first part of this remark the trial judge was presumably thinking of the

directions he gave in relation to the evidence of Maryanne Paradine and the need to be clear

as to the terms of any admission and the requirement for the jury to accept her evidence on

critical matters before they could consider convicting of murder.

“I made it clear to the jury that in the event they concluded that … the deceased

simply fell or tripped, they must acquit or consider the alternative verdict of an

assault at the bottom of the stairs. I also gave a direction on culpable homicide which

referred to a finding on the part of the jury of the appellant “pushing or propelling”

the deceased down the stairs (page 24) and to “conduct, such as a push” by the

appellant at the top of the stairs (page 22). In these circumstances therefore the

phrase in the libel of charge 2 “cause him to fall” was sufficient to cover the

necessary criminal actus for the crime the jury had duly by their verdict found to

[32] The fact that these directions relate only to culpable homicide or assault perhaps

highlights the fact that the trial judge failed to give any directions about how his directions

on murder could operate on the facts of the case, and suggests that he had not fully

appreciated the extent to which either verdict depended on proof of an assault, as opposed

[33] We appreciate that the directions given by the trial judge were lifted entirely from

the Jury Manual. However, as the court observed in DM v HMA [2017] SCCR 235 (para 16)

a slavish and unthinking repetition of what is suggested in the Jury Manual as merely a

“…be sufficient to alert the jury as to how they should go about their decision-

making in every case. Effective jury directions must engage with the specifics of the

particular trial and the particular issues that arise for decision.”

“…to tailor the charge to the specific circumstances of the case, all with a view to

giving proper and clear directions to the jury. Simply to repeat the terms of the

manual is no guarantee against a misdirection appeal. In his foreword to the earlier

edition of the manual, the then Lord President , Lord Hamilton, emphasised that

every charge is unique. … The manual is no more than a first port of call, providing

a useful, but non‑authoritative, checklist of points to bear in mind. Juries are entitled

to a bespoke charge adapted to the evidence and to the particular issues arising in

the trial.” (McGartland v HMA 2015 SCCR per Lord Malcolm, para 31)

[34] Given the evidence of the forensic pathologist, what was required from the trial

judge was a clear direction to the jury that in order for them to convict of either murder or

culpable homicide they had to be satisfied that the appellant had committed an assault on

the deceased which had caused him to fall down the stairs. Because the only form of assault

which had been suggested in the evidence was a deliberate push, as spoken to by Maryanne

Paradine as having been admitted by the appellant, to convict of either murder or culpable

homicide the jury therefore 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. Only if

the jury were so satisfied did the further question arise, whether it had been established that

the appellant had the necessary mens rea for murder in the form of a wicked intention to kill

or wicked recklessness. For all his quotations from the jury manual, the trial judge did not

give such a direction. It may well be that this failure to emphasise the critical importance of

the allegation of a push contributed to confusion on the part of the jury as to precisely what

required to be proved. At all events, they returned a verdict which we consider is both self-

contradictory and inconsistent with the directions that the judge did give. That was

apparent at the time the verdict was returned and called for clarification. The trial judge

should have taken the course of action urged upon him by senior counsel for the appellant.

His failure to do so leaves a verdict from which, taking into account both the evidence and

the judge’s charge, the basis of the appellant’s conviction for murder cannot reasonably be

discerned. We are satisfied that the result is a miscarriage of justice and the appeal must

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION BY RALPH GOLDIE [2020] ScotHC HCJAC_9 (31 August 2018) URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_9.html Cite as: [2020] ScotHC HCJAC_9, 2020 SCCR 87, [2020] HCJAC 9, 2020 GWD 8-118, 2020 JC 164

Scottish High Court of Justiciary Decisons