MacKay v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Pentland,Lord Justice Clerk (Dorrian),Lord Turnbull |
| Judgment Date | 24 June 2020 |
| Neutral Citation | [2020] HCJAC 24 |
| Docket Number | No 31 |
| Date | 24 June 2020 |
| Court | High Court of Justiciary |
[2020] HCJAC 24
Lord Justice Clerk (Dorrian), Lord Turnbull and Lord Pentland
Johnston v HM Advocate [2009] HCJAC 38; 2009 JC 227; 2009 SLT 535; 2009 SCCR 518; 2009 SCL 737
McDade v HM Advocate [2012] HCJAC 38; 2012 GWD 13–249
R v Cheshire [1991] 1 WLR 844; [1991] 3 All ER 670; 93 Cr App R 251; [1991] Crim LR 709
Justiciary — Crime — Culpable homicide — Causation — Whether conduct specified in charge of which appellant convicted sufficient to entitle jury to conclude conduct contributed to death of deceased
Justiciary — Procedure — Verdict — Culpable homicide — Jury deletions of narrative of acts which caused death of deceased — Whether verdict ought to have been recorded as one of assault
Weir MacKay was charged with a co-accused on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, the libel of which set forth a charge of murder. The appellant pled not guilty and the cause came to trial before Lady Stacey and a jury at the High Court of Justiciary in Glasgow. On 3 May 2019, the appellant was convicted of culpable homicide and, on 29 May 2019, was sentenced to a period of 14 years' imprisonment. The appellant appealed against conviction and sentence to their Lordships in the High Court of Justiciary.
The appellant and a co-accused were charged with murder. The libel set forth that they had, inter alia, compressed the neck of the deceased, struck her on the head with a piece of table leg or similar implements and, by means unknown, inflicted blunt force injuries on her head and body. The findings of a post-mortem examination were to the effect that the injuries to the deceased's head were not implicated directly in her death. In addition, the pathologist gave evidence that an assault could provoke cardiac arrhythmia in some cases. The co-accused was convicted of the charge as libelled. In respect of the appellant, the jury returned a verdict of guilty to culpable homicide to the extent of inflicting blunt force injuries on the head and body of the deceased and deleted all parts of the libel which narrated the acts which had caused the death. He appealed.
The appellant argued that the extent of the assault for which the jury had found him responsible had been repeatedly inflicting blunt force injuries to the head and body of the deceased and that the pathology evidence had fallen far short of demonstrating that the blunt force injuries to the head had constituted a substantial contributing factor in the death of the deceased. It was submitted that the medical evidence had amounted to no more than a theoretical possibility that any distress caused by the infliction of the blunt force injuries could have contributed to a cardiac arrhythmia which was capable of having caused death as there had been no evidence that the deceased had in fact suffered cardiac arrhythmia. The appellant submitted that the jury had failed to follow the trial judge's direction that what they found proved against him required to have made a substantial contribution to the death of the deceased before they could convict him of responsibility for the death and that the verdict, in those circumstances, ought to have been recorded as one of guilty of assault.
Held that the appellant had been convicted on the basis of a substantially reduced narrative, to the effect that he had acted in concert with his co-accused, only to the extent that they had, by means unknown, repeatedly inflicted blunt force injuries on the deceased's head and body; the assault for which the appellant was held responsible could not be described as trivial, and, on the evidence, could have resulted in a cardiac arrhythmia contributing to the death, but, in the absence of evidence that the deceased had in fact suffered such an arrhythmia, the mechanism of death to which the appellant might have contributed was no more than hypothetical and the link between the appellant's conduct and the death had been entirely speculative (paras 34, 36, 39–41); and appeal allowed.
Observed that, once the actual mechanism of death was established in evidence, as in Johnston v HM Advocate and McDade v HM Advocate, the jury could come to consider whether the conduct established against the accused made a material contribution to bringing about death through the mechanism as established (para 39).
Johnston v HM Advocate 2009 JC 227 and McDade v HM Advocate2012 GWD 13–249distinguished.
The cause called before the High Court of Justiciary, comprising the Lord Justice Clerk (Dorrian), Lord Turnbull and Lord Pentland, for a hearing, on 15 May 2020.
At advising, on 24 June 2020, the opinion of the Court was delivered by Lord Turnbull—
Opinion of the Court— [1] The appellant and his co-accused Allan Doherty each faced a charge of murder. On 3 May 2019, Doherty was convicted as libelled and the appellant was convicted of culpable homicide. In returning their verdict against the appellant the jury deleted most of the conduct specified in the charge. In this appeal the appellant contends that the verdict returned was in contradiction of the directions given by the trial judge. The appeal is also against the sentence of 14 years' imprisonment imposed.
[2] The charge which each accused faced, after amendment, was as follows:
‘On 9 June 2017 at Flat 3a Kelburn Terrace, Port Glasgow you … did assault Karen Young and did seize hold of her by her neck, compress her neck and thereby restrict her breathing, force open her mouth, force your hand and a metal spoon or similar implement into her mouth, slap her on the face, strike her on the head with a piece of table leg or similar implements and did, by means unknown to the Prosecutor meantime, repeatedly inflict blunt force injuries on her head and body and you did murder her’.
[3] The appellant was convicted on the charge in these terms:
‘On 9 June 2017 at Flat 3a Kelburn Terrace, Port Glasgow you … did assault Karen Young and did, by means unknown to the Prosecutor meantime, repeatedly inflict blunt force injuries on her head and body and you did kill her’.
The contention advanced by the appellant was that there was no evidence upon which the jury could have concluded that any injuries to the victim's head or body made a substantial contribution to her death. The jury deleted all parts of the libel which narrated the acts which had caused the victim's death and the verdict so returned ought to have been recorded as a verdict of assault.
[4] The victim, Karen Young, was a woman in her forties with a long history of drug abuse. She lived in Kilmalcolm in a flat in the same block as her parents. She had a prescription for methadone, which she took daily in the presence of a pharmacist. She also abused heroin, cocaine and crack cocaine. According to the evidence given by her mother, Ms Young bought cocaine and crack cocaine from people who lived in Port Glasgow.
[5] Ms Young last collected her methadone prescription on 8 June 2017. Around that time, and for the few days previously, it had been noticed that she was not her usual self. She was less friendly than she usually was, she had not been taking as much care as she usually did over her appearance and she had a very bad cough. On 9 June 2017 she was seen in a grocery shop in Kilmalcolm where she was known as a regular customer. She was not seen to be suffering from any injuries. Around 13.36 hours that day ambulance personnel and police officers attended at Doherty's flat at 3a Kelburn Terrace, Port Glasgow and found Ms Young there. She was unconscious and attempts to revive her were unsuccessful. She was pronounced dead. Doherty was the only other person in the flat at that time. There was evidence from a number of sources as to the circumstances in which Ms Young died.
[6] Gillian Howie was the appellant's partner. Her evidence was that she had gone to Doherty's flat, by arrangement, on the morning of 9 June to collect the appellant. He had been staying there for few days after they had...
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Note Of Appeal Against Conviction By Keith Farquharson
...9 applied to the neck area. The pathologist did not say that reflex cardiac arrest was the mechanism of death (see McKay v HM Advocate [2020] HCJAC 24 at para [38]). [20] In any event, even if the directions of the judge had been in error, there had been no miscarriage of justice having reg......