Mustafa Elsherkis V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Hardie,Lady Cosgrove |
| Neutral Citation | [2011] HCJAC 100 |
| Date | 18 October 2011 |
| Published date | 18 October 2011 |
| Year | 2011 |
| Court | High Court of Justiciary |
| Docket Number | XC801/10 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Hardie Lady Smith Lady Cosgrove | [2011] HCJAC 100 Appeal No: XC801/10 OPINION OF THE COURT delivered by LORD HARDIE in APPEAL AGAINST CONVICTION by MUSTAFA ELSHERKISI Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Miss M. E. Scott, Q.C., Prais; Thorley Stephenson, Solicitors
Respondent: Prentice, Q.C., Solicitor Advocate, A.D.; Crown Agent
18 October 2011
Introduction
[1] On 15 November 2010 at Edinburgh High Court the appellant was convicted by a majority verdict of the jury of the following charge:
"On 26 May 2010 at 1 Stenhouse Gardens North, Edinburgh you MUSTAFA ELSHERKISI did assault Mohammed Idris Mirza, formerly residing at 1/5 Stenhouse Gardens North, Edinburgh and did strike him on the body with a knife and you did murder him, and it will be proved in terms of Section 96 of the Crime and Disorder Act 1998 that the aforesaid offence was racially aggravated."
On 6 December 2010 at an adjourned diet for sentence at Edinburgh High Court the trial judge sentenced the appellant to be imprisoned for life and fixed the punishment part of that sentence at fifteen years. In addition the trial judge made a recommendation for deportation of the appellant in terms of section 6(2) of the Immigration Act 1971.
Circumstances of the offence
[2] It appears from the report by the temporary judge who conducted the trial that in or about 2000 the appellant came to reside in the United Kingdom and married a local woman in Bradford in about 2001. They resided in the Yorkshire area until about the beginning of 2010 when they moved to Edinburgh and rented a flat beneath that occupied by Mohammed Mirza, the deceased, and his family. The deceased's brother, Iqbal Mirza, lived within the same building at the same level as the appellant. There was a history of friction between the appellant and his wife and their neighbours relating to access to a car parking area by the appellant and also relating to the alleged fouling by the appellant's dog of common garden ground to the rear of the flats. On the date libelled at about 9.30pm the appellant was exercising the dog in the common garden ground when he was confronted by the deceased. A quarrel ensued as to whether the appellant would pick up the dog's faeces. Matters became quite heated and abuse was exchanged on both sides resulting in Iqbal Mirza coming out of his flat to try to calm matters. The appellant went into his own flat and the deceased was persuaded by his brother to go upstairs to his own house. The temporary judge notes that "there is a high probability that, before the appellant went back to his flat ..., the victim had called the wife of the accused 'a white bitch'". This was apparently one of the factors which caused the appellant to react violently towards the deceased. Shortly after entering his own home the appellant re-emerged with the murder weapon which was a large ornamental dagger. The appellant called the deceased a "Paki bastard". The deceased turned as he was going upstairs and made to come back down to confront the appellant. At this point the dagger held by the appellant entered the upper chest of the deceased as a result of which the deceased died a few minutes later. The cause of death was a deep stab wound to the aorta. The circumstances in which the dagger entered the body of the deceased were in dispute. The Crown's position was that at the point at which the deceased turned to come downstairs towards the appellant the appellant sprang up the stairs at him and stabbed him on the upper part of the chest. The appellant's position at trial was that the deceased fell onto the dagger and that his death was the result of an unfortunate accident.
Grounds of appeal
[3] The grounds of appeal allege that the temporary judge misdirected the jury in a number of material respects and that in respect of each and all of these misdirections there has been a miscarriage of justice. The first alleged misdirection arose in the context of his definition of murder. Although the temporary judge correctly defined the crime of murder, he indicated that an intention to kill was "obviously wicked" (charge to the jury, page 7) and he advised the jury that the question for them was whether there was a deliberate intention to kill and "if so, that would be murder" (charge, page 10). These amounted to misdirections because it was always a matter for the jury to determine whether there was the requisite wickedness to render a killing murderous. Even where there was a deliberate intention to kill, the jury could nevertheless conclude that the wickedness necessary for murder was absent. The second alleged misdirection arose in the context of the temporary judge's directions relating to the alternative crime of culpable homicide, if the jury concluded that the requisite wickedness was absent. In that regard there had been a series of errors by the temporary judge. He failed to direct the jury that they could convict the appellant of culpable homicide even if they concluded that there had been a deliberate intention to kill; he failed to direct the jury about the evidence available to them in their assessment of proof of wickedness; he failed to make clear to the jury that the reason for the appellant arming himself and brandishing a knife was relevant to the assessment of wickedness; although there was no plea of provocation, the insult to the appellant's wife and the aggressive and threatening behaviour of the deceased and his family were relevant to the assessment of wickedness but no directions were given to that effect; his directions about accident were confusing and unclear; he made no mention of the defence evidence and failed to direct the jury on how to approach defence evidence; he failed to advise the jury that the accused's account did not require corroboration and that if the jury disbelieved the accused's evidence the test was whether the evidence raised a reasonable doubt that the Crown had proved its case; he failed to direct the jury as to how they should treat prior statements made by witnesses to police officers.
Submissions on behalf of the appellant
[4] Miss Scott's primary submission was that the effect of the passages at pages 7 and 10 of the trial judge's charge to the jury was that the jury were advised that if there was a deliberate intention to kill the deceased that amounted to murder because obviously such an intention was wicked. That was a misdirection because it removed from the jury the determination of the crucial matter of whether the appellant had the necessary mens rea for murder. All intentional killings were not wicked and wickedness was not a necessary inference that could be drawn from an intention to kill. There were many situations in which an intention to kill might lack the necessary wickedness for murder. For example, it was well established that provocation or diminished responsibility would result in a conviction for the lesser crime of culpable homicide, even although the assailant had intended to kill his victim. The existence of provocation or diminished responsibility was relevant to the jury's assessment of whether the assailant possessed the necessary wickedness when he killed his victim. Miss Scott accepted that there may well be circumstances where the evidence was such that the jury was bound to conclude that an intention to kill was obviously wicked and that an assault resulting in death in such a case was accordingly murder.
[5] Moreover, she acknowledged that, in the present case, the circumstances came close to that situation but she did not concede that there was no evidence relevant to the jury's assessment whether the appellant had the necessary wicked intention to kill the deceased. Although there was insufficient evidence properly to found a plea of provocation or self defence, there were issues in the evidence which the jury would have been entitled to consider in order to determine whether the appellant lacked the necessary "wickedness of heart" for murder. That evidence consisted of the heated argument and exchanges of racial insults, threats and abuse between the appellant and the deceased; the evidence of the appellant that he armed himself for protection and that when he did so and left the house he had no intention to kill the deceased; and that when he brandished the knife he was in fear for himself and his family. In Drury v HMA 2001 SCCR 583 the Court had considered the nature of the mens rea of intentional murder. At paragraphs [17] and [18] the Lord Justice General (Rodger) made it clear that in the context of a case involving alleged provocation it was a matter for the jury to determine what the accused's state of mind was at the time when he killed his victim and that the evidence relating to provocation was simply one of the factors which the jury had to take into account. Miss Scott submitted that a proper construction of those passages resulted in the conclusion that, as a generality, the jury are the arbiters of whether an accused had the necessary mens rea for murder, having regard to all of the factors disclosed in the evidence accepted by them. Hume (vol. i, p. 254) seems to suggest that malice is implied by the act of intentional killing, indicating a presumption of wickedness in such circumstances. Hume also refers to the accused overcoming the presumption of wickedness by leading evidence of necessity or excusable infirmity. Miss Scott submitted that these observations were inconsistent with the later observations in Hume at page 256 to the following effect:
"Thus, on the whole, the malice which the law requires in this particular, proves to be no more than this, - a depraved and wicked disposition; a heart regardless of duty or humanity; which is to be gathered from the whole circumstances of the case, as they appear in evidence."
That passage seems to suggest that in intentional...
To continue reading
Request your trial
-
Gordon v HM Advocate
...1947 JC 1; 1947 SLT 3; 1946 SLT (Notes) 13 Brady (Paul) HCJ, Lord Macfadyen, 15 October 1996, unreported Elsherkisi v HM Advocate [2011] HCJAC 100; 2011 SCCR 735; 2012 SCL 181; 2011 GWD 37–758 Galbraith v HMA dvocate (No 2) 2002 JC 1; 2001 SLT 953; 2001 SCCR 551 MacAngus v HM Advocate sub n......
-
Green v HM Advocate
...(Supp) 253 Docherty v HM Advocate 1945 JC 89; 1945 SLT 247 Docherty v HM Advocate 2003 SLT 1337; 2003 SCCR 772 Elsherkisi v HM Advocate [2011] HCJAC 100; 2011 SCCR 735; 2012 SCL 181; 2011 GWD 37–758 Ferguson v HM Advocate [2015] HCJAC 89; 2015 SCL 972; 2015 GWD 35–563 Gardener v HM Advocate......
- Asif Rehman+adel Ishaq V. Her Majesty's Advocate
-
Begum v HM Advocate
...HM Advocate [2015] HCJAC 75; 2015 SCL 859; 2015 GWD 28–477 D'Arcy v HM Advocate [2013] HCJAC 173; 2014 GWD 1–12 Elsherkisi v HM Advocate [2011] HCJAC 100; 2011 SCCR 735; 2012 SCL 181; 2011 GWD 37–758 Fenton v HM Advocate [2014] HCJAC 70; 2014 SCCR 489 Gilroy v HM Advocate [2013] HCJAC 18; 2......