Her Majesty's Advocate Against A.j.v.
| Jurisdiction | Scotland |
| Judge | Lord Wheatley,Lord Bracadale,Lady Clark Of Calton |
| Neutral Citation | [2014] HCJAC 126 |
| Date | 18 November 2014 |
| Year | 2014 |
| Docket Number | HCA/2014-2436 |
| Court | High Court of Justiciary |
| Published date | 18 November 2014 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2014] HCJAC 126
HCA/2014-2436/XC
Lord Bracadale
Lady Clark of Calton
Lord Wheatley
OPINION OF THE COURT
delivered by LORD BRACADALE
in a Crown Appeal in terms of sections 108 and 110
of the Criminal Procedure (Scotland) Act 1995 against Sentence
by
HER MAJESTY’S ADVOCATE
Appellant;
against
A.J.V.
Respondent:
Appellant: Fairley QC, AD; Crown Agent
Respondent: McConnachie QC, Labacki; Paterson Bell
18 November 2014
Introduction
[1] On 3 April 2014 after trial at the High Court at Glasgow the appellant was convicted of a charge of murder in the following terms:
"On 20 September 2013 at [ an address in ] Glasgow you did assault M V, formerly residing there, your wife, pursue her, seize hold of her by her arms and repeatedly strike her on the body with a knife and you did murder her and you did previously evince malice and ill-will towards her".
[2] The appellant had no previous convictions. On 1 May 2014, after considering a criminal justice social work report, the trial judge sentenced the appellant to life imprisonment and ordered that he serve a punishment part of 12 years in terms of section 2 of the Prisoners’ and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act). The Crown have appealed in terms of section 108 and 110 of the Criminal Procedure (Scotland) Act 1995, contending that the punishment part was unduly lenient.
The evidence
[3] The respondent was aged 46 years at the date of the offence. He had worked for many years in the Department of Work and Pensions. The deceased had also worked there at one time. She had gone on to take a course at university. The respondent and the deceased, who were separated at the date of the offence, had been married for about 20 years and had one child, JV, aged 11 years at the time of his mother’s death. The family home had been extended on one side by the addition of a “granny flat” which was occupied by the respondent’s father, GV.
[4] At the beginning of October 2012 the deceased met ER, a Polish woman, at a party. The two women struck up a friendship; in the period which followed ER became a frequent visitor to the household of the respondent and the deceased and came to be regarded as a close friend of the family. In or around December 2012 the relationship between ER and the deceased became intimate. In May 2013 the deceased moved out of the family home and went to stay at the flat of her sister, CM, in Rutherglen. The deceased stayed with her sister for a few days before moving in with ER in Edinburgh; both the respondent and JV, however, were under the impression, encouraged by the deceased, that she was continuing to live in her sister’s flat. A routine developed whereby the deceased would come to Glasgow on Tuesday and Friday evenings to see JV, who also stayed with her every second weekend at CM’s house.
[5] During the evening of 19 September 2013 JV was familiarising himself with his new iPad when he inadvertently intercepted e‑mail messages sent between his mother and ER; these were of an obviously intimate nature. JV showed the messages to the respondent. The respondent repeatedly tried to call the deceased’s mobile phone but she did not answer. A series of text messages were then exchanged between the respondent and the deceased in which the respondent requested a meeting and in which, when the deceased refused to meet, he both criticised her for having an affair and threatened to kill himself.
[6] After taking JV to school on the morning of Friday 20 September 2013, the respondent took the day off work. He transferred money from his own bank account into those of his son and his father. He wrote letters to each of them. He gave evidence at trial that he planned to consume a quantity of valium and prescribed tablets along with vodka and to take his own life by stabbing himself with a kitchen knife. The respondent continued to send numerous texts to his wife demanding an explanation for her conduct but she did not reply. At around 11.00 am he sent the deceased a text:
“My death is solely your responsibility and my blood will be on your hands until the day you die. You cannot even begin to understand what you have done to me”.
At some point the respondent printed out a series of the intercepted messages and tore his wife’s image from several photographs which had been on display in the family home. The respondent’s father returned home from meeting friends and was surprised to find the respondent upstairs in bed. The respondent had apparently passed out after consuming a quantity of medication and alcohol.
[7] Earlier in the week it had been arranged that on Friday 20 September 2013 JV would go to the house of a friend after school. The friend’s mother, AT, was to bring JV home at about 8.30 pm. The deceased arrived at the family home in the early evening in order to see JV. On the respondent’s account in evidence, they argued in the bedroom and she left, saying that she would return when JV was due back. The respondent claimed that the deceased had removed, from beside the bed, a knife which he had intended to use to stab himself; thereafter, he had passed out again. A text sent by the deceased to ER at 7.35 pm suggested that she had admitted their affair to the respondent, under explanation that it had started in late July or early August 2013.
[8] When the deceased returned to the family home JV had not yet arrived home. She sat in the living room and watched television. GV heard her come in; he came through from his flat and spoke to her.
[9] At around 8.10 pm a neighbour heard a series of three screams coming from the house, followed by a woman’s voice saying “No, don’t”. The neighbour went to her front window and saw a car draw up outside. This was AT dropping off JV, who got out of the car and went to the front door of the house. The house was in darkness and no one answered the door to him. JV went round to his grandfather’s flat. A few minutes later, GV appeared at the front door of the family home to admit JV. GV signalled to AT to come in. AT, who was a nurse, entered the house, taking her daughter with her. GV told her that the deceased was in the living room and seemed unwell. AT sent her daughter and JV upstairs and examined the deceased. She found the deceased slumped on the sofa with a major, bleeding wound to her lower back. An ambulance was called. Paramedics found the deceased dead. The respondent, who had remained upstairs, appeared to be unresponsive but was still breathing. He was transferred to an ambulance and was subsequently found to have two superficial wounds to his chest and abdomen.
[10] A post‑mortem examination of the deceased was conducted by Dr Marjory Turner. Dr Turner gave evidence that the deceased had sustained four stab wounds on her body, three to the front and one to her back, along with possible “fingertip” bruising to her upper arms. Two of the wounds to the front were superficial but the third stab wound had penetrated her rib cage and injured her right lung. The fourth wound, to the back of her chest, had been fatal: it had cut her lung and thoracic aorta and death had resulted from the ensuing haemorrhage. Dr Turner’s evidence was that the blow would have required mild to moderate force with a sharp implement. It would not have been survivable, even with medical attention. The pathologist said that the wound to the back showed signs of movement which were consistent with having been inflicted while the deceased was trying to escape. The wounds were inflicted by a kitchen knife with a 12 cm long blade.
[11] In his evidence the respondent said that he woke up and heard the deceased and GV talking. He went downstairs to the living room and asked his father to leave so that he and the deceased could speak in private. They argued again and, according to his account, the respondent went into the kitchen to recover the knife which had earlier been placed there by the deceased. His purpose in doing so was that he could complete his plan to kill himself. The respondent said that on his return to the living room the deceased confronted him and they struggled. He dropped the knife; the deceased picked it up and he tried to recover it. The respondent said that the deceased concealed the knife behind her back and in the course of the struggle she fell back on to the sofa, coming to rest with the handle of the knife visible at her side. The respondent maintained that he pulled the knife from her and went back upstairs to the bedroom where he had attempted to stab himself before passing out again. The respondent’s position was that he had been unaware that his wife had sustained any injury when he left the living room. Essentially, the position of the respondent was that the stab wounds had been inflicted by accident. By their verdict the jury rejected the evidence of the respondent in this respect.
The trial judge’s directions on culpable homicide
[12] The trial judge left open to the jury the possibility of returning a verdict of culpable homicide. He did so on two bases. He directed the jury that if they were satisfied that the respondent assaulted the deceased but were not satisfied that he did so with the wicked intention to kill or the wicked recklessness necessary for murder, it would be open to them to return a verdict of culpable homicide. He further directed the jury that it was also open to them to return a verdict of culpable homicide on the basis that the respondent had killed his wife whilst acting under provocation arising from the discovery of marital infidelity. By their verdict the jury rejected both of these possibilities.
The trial judge’s approach to sentencing
[13] The basis on which the trial judge...
To continue reading
Request your trial
-
Appeal Against Sentence By Her Majesty's Advocate Against Ab
... ... work record, the sentence was within the range reasonably to be considered appropriate (HM Advocate v Bell 1995 SCCR 544 at 550; HM Advocate v AJV 2015 SCCR 50). Decision [11] The court recognises at once that Parliament has re-categorised penile penetration of the mouth as rape. ... ...