Donald Mcdade V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Carloway,Lord Bonomy |
| Neutral Citation | [2012] HCJAC 38 |
| Court | High Court of Justiciary |
| Published date | 15 March 2012 |
| Date | 02 March 2012 |
| Docket Number | XC353/11 |
| Year | 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Bonomy Lord Philip | [2012] HCJAC 38 XC353/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST CONVICTION by DONALD McDADE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: Shead; Paul Hannah, Glasgow
Respondent: Brodie Q.C.; Crown Agent
2 March 2012
[1] On 17 March 2011, at the High Court in Glasgow, the appellant was found guilty of the culpable homicide of Thomas Murphy at 12 Oatfield Street in the city on 16 December 2009.
[2] The libel was that the appellant had punched the deceased on the head, struggled with him, caused him to fall down a flight of stairs and repeatedly struck him with a knife, all to his severe injury and, in consequence, the deceased had suffered a fatal heart attack. In returning their verdict, the jury deleted the references to punching, struggling, falling downstairs and the severity of the injury. The verdict was therefore one of killing the deceased by repeatedly stabbing him, as a result of which he had suffered the heart attack.
[3] The evidence revealed that the deceased, who was aged 58, had not been in good health. He had been a heavy smoker and had significant narrowing of the arteries. In addition, the heart was thickened by hypertrophy, brought about by high blood pressure. He was accordingly constitutionally at risk of a heart attack at any time.
[4] The circumstances of the offence were that the deceased had been telephoned at home by the appellant and asked to go round to his flat. The deceased had been frustrated and anxious about the content of the telephone call. It may have concerned the deceased's brother in-law, David Kerr, who lived in the flat below that of the appellant and with whom the appellant drank. The deceased arrived at the appellant's door, where an altercation took place between the appellant, the deceased and Mr Kerr. This may have involved aggressive behaviour on the part of the deceased, who habitually carried a walking stick. It resulted, one way or another, in a physical confrontation, culminating in all three participants falling down the stairs and ending up on a lower landing. Mr Kerr had a cut head.
[5] At some point in the course of the incident, the appellant had stabbed the deceased three times, albeit in what turned out to be a relatively minor, but not trivial, way. There had, however, been a considerable effusion of blood as a result. The deceased was taken into a neighbouring flat where he expressed his concern that the appellant had stabbed him. He had also been anxious about Mr Kerr. A number of paramedics arrived at the flat. The deceased was not initially in any obvious, serious discomfort. He had...
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MacKay v HM Advocate
...Cases referred to: 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 homic......