Docherty v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 17 March 1945 |
| Date | 17 March 1945 |
| Docket Number | No. 15. |
| Court | High Court of Justiciary |
HIGH COURT
Ld. Moncrieff. Lord Carmont. Lord Russell.
Crime—Art and part—Murder—Panel charged with murder while acting in concert with unknown man—No evidence to show which struck the fatal blow—Review—Judge's charge—Alleged misdirection on the law as to concert—Failure explicitly to direct jury to acquit if concert not established.
A panel was convicted on an indictment which charged him with murder while acting in concert with an unknown man. The evidence established that the deceased was found dying in a back court after having been assaulted in the panel's one-roomed house. He had received only one blow which could account for his death, and this had been struck with a hatchet which belonged to the panel. Throughout the material period when the deceased was in the panel's house there had also been present in the house not only the panel but also the unknown man, and there was no evidence to show which of the two had struck the fatal blow.
In an appeal it was maintained on behalf of the panel (1) that the judge had misdirected the jury on the law relating to acting in concert, the alleged misdirection being found in an illustration given by him, and (2) that he had not directed the jury that they must acquit the panel if concert had not been established to their satisfaction.
Held (1) that, while the illustration was open to criticism, it could not in view of the charge as a whole have led to any misapprehension or miscarriage of justice, but (2) that a clear and explicit direction should have been given to the jury that, if they failed to find satisfactory proof of concert, they were bound on the evidence led to return a verdict of acquittal, and (3) that, as no such direction had been given, the conviction must be quashed.
John Docherty was charged on an indictment at the instance of His Majesty's Advocate, which set forth that "you did, while acting in concert with a person whose name and address are to the prosecutor unknown, on 23rd December 1944, in the house occupied by you at 21 East Shaw Street, Greenock, assault Leonard Davies…and did strike him on the head with your fists, and with a hatchet and a loaded cane or other similar instruments, knock him down, kick him on the head with your booted foot and rob him…and you did murder him."
He pleaded not guilty and was tried before Lord Jamieson and a jury at a sitting of the High Court at Glasgow on 27th and 28th February and 1st March 1945, when the jury, by a majority, found him guilty of murder as libelled.
The facts material for the purposes of this report were that the panel, the deceased and the unknown man, after having been seen together in a bar earlier in the day, entered the panel's one-apartment house at 21 East Shaw Street at about 2 p.m. on 23rd December 1944. A noise suggestive of a scuffle was heard by neighbours, and shortly afterwards the deceased came out alone, before either of the others. About 2.45 p.m. he was found in a dying condition in the back court adjoining the house. He was found to have sustained several head injuries, but only one of these could account for his death—a comminuted fracture of the skull above the left ear. The nature of this injury was such that it was quite possible for the deceased to have reached the back court unaided before he became unconscious. The extent of the injury supported the view that it had been inflicted with a hatchet which was subsequently found in the panel's house, stained with blood. In the house there were signs that a struggle had taken place, and there was blood on the floor and the door and the door of a press. The panel's clothing was also found to be stained with blood, and there was evidence that he had been seen subsequently in possession of articles belonging to the deceased.
Lord Jamieson commenced his charge to the jury by giving them the following directions:—
"The facts are a matter for you. It is for you and you alone to say what credence you give to any of the witnesses and what inferences you may draw from the evidence which has been laid before you. The question of law is a matter for me. You must take the law from me, and I have to take the responsibility of the directions in law that I give you. I am only going to give you three directions in law."
"The first is this, that, in order to constitute the crime of murder, there need not be a premeditated intention to kill. A wilful act, resulting in the death of another, done so recklessly as to show that the person who committed it was utterly regardless of the consequences, is murder.
"The second direction that I want to give you deals with the question of concert, because, as has been pointed out to you by both counsel, the accused here is charged with acting in concert with some man whom the prosecutor has been unable to trace. Now concert as applied in criminal law simply means this, that two or more persons take part in a plan to commit a crime or act together in its commission. In some cases, and very often where there is concert, it is premeditated, that is to say that a plan is entered into beforehand to commit a crime—it may be fraud, it may be to hold up a bank, or it may be a crime of violence. Very often it is premeditated, but in order that there may be concert premeditation is not necessary. It is enough that two or more persons join together in doing what is done. I think really that it is perhaps best illustrated by the phrase that under our old procedure used to be used in every indictment, and which is still implied in every indictment, that the two or more persons charged are actors or art and part in the crime. Although a number of persons are charged as acting in concert, it does not follow that all may be found guilty. Some may be guilty and some may not be guilty, and, just because of that, where concert is charged, the first thing a jury has to determine is whether each—and they must consider each separately—whether each is in the concert or in the plot or took part in the crime which was committed. But once a conclusion is reached, but only if a conclusion is reached, that each or all or a number are taking part, then anything that is done is evidence against all of them who are in the concert. Perhaps I could best explain that by giving you two illustrations. One is very often given: If a number of men surround a house with the intention of killing a man who is in it as he comes out, and one only fires the shot that causes death, yet all are equally guilty. In the same way, if without premeditation two or three men set on to someone in the street with the intention, just perhaps entered into at the time, of causing him injury, and one stabs him fatally, then all are equally guilty although there was not really an intention, until the man came along, to attack him at all. In this case you have only got one of the persons said to have been acting in concert before you, and accordingly what you have to consider is whether he, the accused, was concerned in encompassing the death of Leonard Davies. If you are satisfied that he was, it is immaterial whether he or somebody else struck the fatal blow; but before you can convict you must be satisfied that he was concerned in bringing about Davies's death. That is all I have to say to you with regard to concert.
"The other direction that I want to give you is this, that, as you have been told and told perfectly rightly, every man is innocent in this country according to our system of law until he is proved guilty. And accordingly the burden of proof is on the Crown to prove guilt, and, if you have any reasonable doubt, then the accused is entitled to get the benefit of the doubt, but the doubt must be a real doubt, a reasonable doubt, not just some trifling little thing. It must be reasonable or real…"
His Lordship then referred to the evidence and concluded his charge as follows:—
"The real question which you have to consider is this; if he [the accused] was in the house, did he or did he not play a part in what was going on? Is the inference from all the proved facts
such as to lead you inevitably to a conclusion that he did? Or let me put it another way: An attempt is being made to put the blame on the other man, but if you are satisfied that Davies received his fatal injuries in the accused's house, that these injuries were caused by the hammer head of that hatchet, that the accused was there, that the accused participated in the crime, whether he struck the fatal blow or not, then your verdict would be one of guilty. On the other hand if you think that the accused had nothing to do with it, or if...
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