APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Menzies Lady Smith Lord Bracadale	[2013] HCJAC 125 XC544/12   OPINION OF THE COURT   delivered by LORD MENZIES   in   APPEAL AGAINST CONVICTION   by   CHRISTOPHER GRENFELL   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

 

Appellant: Duguid QC, Connolly; Capital Defence

Respondent: Prentice QC, AD; Crown Agent

 

24 September 2013

 

[1] There were originally five grounds of appeal in the note of appeal in this case. The fifth ground of appeal was refused at sift and senior counsel for the appellant indicated at the outset of his submissions to us today that he did not intend to maintain the fourth ground of appeal. The remaining grounds are all directed at a submission that the trial judge misdirected the jury by failing to include in his charge adequate definition of what constitutes recklessness in involuntary culpable homicide, in contrast to the wicked recklessness required for murder, and that this resulted in a miscarriage of justice.

[2] It is worthwhile observing that at an earlier stage in these proceedings before the commencement of the trial, at a preliminary hearing on 27 July 2012 the appellant had offered to plead guilty to charge 2 on the indictment in the following terms:

"On 29^th November 2011 at Graham Place, Ashgill, you CHRISTOPHER GRENFELL did drive motor vehicle registered number SG57 GVN culpably and recklessly whilst James Simpson, born 6 April 1935, formerly residing at 4 Graham Place, Ashgill was standing in close proximity to the driver's door whereby he was struck on the body by said door and fell to the ground and whilst there drive said motor vehicle over the body of the said James Simpson whereby he was so severely injured that he died and you did kill him."

 

That plea was not accepted by the Crown.

[3] In the witness box the appellant accepted that he was guilty of culpable homicide on the basis of the narrative set out in that plea. By agreement of the parties copies of the terms of the charge to which the appellant had offered to plead guilty were distributed to the jury at the end of the judge's charge so that, as the trial judge puts it in his report to us, "they were aware of what it was that they would convict the accused in the event of not being satisfied as to assault".

[4] The trial judge in his charge to the jury identified at page 25 that charge 2 was a charge of both assault and of murder and he therefore had to define the crime of assault, because, as he put it to the jury, that was a much contested matter. He gave a careful definition of the crime of assault with which no issue is taken on behalf of the appellant. He then proceeded to give a careful definition of murder; again no issue is taken on behalf of the appellant with that definition. He then explained to the jury at page 46 of his charge that if they were not satisfied that the appellant perpetrated a murderous assault, in other words that he did commit an assault but not with the intention of killing, or in a wickedly reckless way, they could find him guilty of culpable homicide. In this context he told them that culpable homicide is causing someone's death by an unlawful act, in this case assault, which is culpable or blameworthy. He said it was killing someone where the accused did not have the wicked intention to kill and did not act with such wicked recklessness as to make him guilty of murder. Again the trial judge observed to the jury "in this context the unlawful act must be intentional as in an assault but any death which results from an assault is at the least culpable homicide". He explained how the jury would address the charge - he observed that the word "murder" would come out and the word "kill"... (there was a break in the recording at this point) and that that would indicate that the jury would be convicting of culpable homicide but retaining the assault and would have found the assault proved. He went on to explain that there was a third option which Mr Duguid had outlined to them in his submission to them; that was again culpable homicide not murder, but it was culpable homicide not as a result of an assault but the result of culpable and reckless conduct by driving. The appellant accepted that the jury could return a verdict of this nature. So if the jury were not satisfied that the appellant was guilty of assaulting Mr Simpson then they would return a verdict to the charge in the terms set out in a document which would shortly be distributed to them as the third option that they had. That is the document setting out the terms of the plea to which we have already referred. The trial judge summed up the options for the jury as follows:

"First of all if you are convinced beyond reasonable doubt that Mr Grenfell assaulted Mr Simpson its either murder or culpable homicide based on assault. If you are not satisfied about assault it would be culpable homicide on the third option, the culpable and reckless".

 

[5] The submission for the appellant before us was that the trial judge misdirected the jury by failing to explain to them the requisites of involuntary culpable homicide in this context, and in particular the difference between wicked recklessness as an ingredient of murder and reckless conduct as an ingredient of involuntary culpable homicide. Although this might have been a difficult concept to explain to the jury, it had to be done in this case. The omission of this definition constituted a misdirection and Mr Duguid submitted resulted in a miscarriage of justice - if the jury were not told about what constituted the third option, how do we know, he asked, that they would not have preferred it? Mr Duguid referred us to Touati v HM Advocate 2008 SCCR 211 particularly at paragraph 27; Ferguson v HMA 2009 SCCR 78 particularly at paragraph 33; and Thomson v HMA 1989 SLT 170 particularly at 172 C - E. He also referred us to McDowall v HMA 1998 SCCR 343 and Purcell v HMA 2007 SCCR 520, 2008 JC 131. Reference was also made to R v Coutts 2006 1 WLR 2154 particularly at paragraphs 86, 88 and 89. In reply the advocate depute submitted that the circumstances of this case were unusual and could be distinguished from those in the authorities relied on by the appellant. In particular this was not a case in which the appellant had been deprived of the opportunity of the jury considering a verdict as in R v Coutts. In the present case the jury were told that they could return a verdict of murder, a verdict of involuntary culpable homicide on the basis of assault, a verdict of involuntary culpable homicide in the terms in which he had already offered plead guilty and which were before the jury in written form, and finally they were given the option of a verdict of acquittal.

[6] The advocate depute submitted that the jury had listened to all the evidence, to the submissions, and to the charge; by their retaining the word "assault" and the word "repeatedly" in the charge of which they found the appellant guilty they must have accepted the Crown evidence and in particular the evidence of Mrs Simpson. If there was any misdirection (which the Crown did not concede) there was in any event no miscarriage of justice. The jury having been properly charged on both assault and murder they concluded that the appropriate verdict was that the appellant was guilty of murder.

[7] Before giving our discussion and decision we should record that in addition to the oral submissions made to us today for each of the appellant and the Crown we have taken into account the written case and argument prepared earlier for the appellant and the written submissions for the Crown which have been lodged.

[8] It has been repeatedly observed by this court that a judge's charge must be seen in the context of the trial in which it was given, and should not be viewed as a legal lecture or academic treatise. We consider, looking to the terms of the charge as a whole that the trial judge fairly placed all the relevant issues before the jury and that the absence of any more detailed explanation of recklessness in the context of involuntary culpable homicide did not amount to a misdirection in the circumstances of this case. Even if we are wrong in that conclusion we are satisfied that no miscarriage of justice resulted. The trial judge properly focussed the jury's attention on the crucial issue of whether or not the appellant assaulted Mr Simpson and no issue is taken on behalf of the appellant with the directions of the trial judge on assault or murder.

[9] We agree with the submission of the advocate depute that no verdict was withheld from the jury - they had the options of convicting of murder, culpable homicide by assault or involuntary culpable homicide. The latter was focussed in the written plea which was before them and which recorded the appellant's position, not only when it was tendered but also at trial. In all these circumstance the appeal is refused.

 

 

 

DAW