Alexander Touati+russell Gilfillan V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord MacLean,Lord Justice General,Lord Nimmo Smith |
| Judgment Date | 13 December 2007 |
| Neutral Citation | [2007] HCJAC 73 |
| Date | 13 December 2007 |
| Docket Number | XC216/02 |
| Court | High Court of Justiciary |
| Published date | 13 December 2007 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Nimmo Smith Lord MacLean | [2007] HCJAC 73 Appeal Nos: XC216/02 and XC215/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEALS by ALEXANDER TOUATI First Appellant; and RUSSELL GILFILLAN Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Stacey, Q.C., Mason; McClure Collins, Edinburgh (First Appellant): Shead, Mackenzie; Capital Defence Lawyers, Edinburgh (Second Appellant)
Alt: Bain, A.D.; Crown Agent (Respondent)
13 December 2007
Introduction
[1] The appellants were, with two others, tried in the High Court at Glasgow on several charges, including the murder in January 2002 of James Connelly. These others were acquitted of the charges against them. The Advocate depute withdrew the first charge against the appellants. They were both convicted of the second charge (that of murder) and of the third charge (a charge of attempting to defeat the ends of justice by concealing weapons and clothing used and worn at the time of the commission of the murder).
[2] The first appellant lived with his partner and their child in a house on an estate in Dundee. In the early afternoon of 1 January 2002 Connelly and another man went to the first appellant's house, the other man's intention apparently being to purchase heroin there. An altercation took place between that man and certain women, the result of which was that the appellant and another man emerged from the house and chased Connelly away.
[3] Later that day Connelly and another associate, Peter Richardson, both fuelled by a cocktail of drink and drugs, decided to attack the first appellant's house in reprisal. They armed themselves with caning knives and a hammer. These knives, which were designed for use in berry picking, had a long blade hooked at the end with the sharp edge forming the inside edge of the hook. With these instruments they attacked the first appellant's house. The front door was subjected to an onslaught with feet, hammer and knives in the course of which the letter box was removed and deep gouges (evident on photographs used at the trial) made in the door. Items lying in the garden, including a tricycle and a push chair, were thrown at the windows of the house. The occupants, who included the appellants, the first appellant's partner and the child were understandably frightened and disturbed. Threats were made to their lives, including to the life of the child. This attack took place at about 10 p.m.
[4] The male occupants of the house then armed themselves with various weapons and emerged from it to chase the attackers away. At this Connelly and Richardson ran off, pursued by the appellants and their two co-accused, the latter of whom included a neighbour (Mohammed) who had emerged from his own house. Connelly was overtaken about 100 yards from the house. It is uncertain whether he slipped in the icy conditions which affected the footpath along which he had run and was then set upon by his pursuers or whether he turned to face them and was brought to the ground and then attacked.
[5] The attack was sustained and vicious. There was some evidence to the effect that there were initially four assailants but that at some stage Mohammed and the other co-accused (McHugh) withdrew, leaving the appellants to continue the attack. An important witness, Zoe Waterstone, who was 13 years of age at the time of the trial in September 2002, described the attack as having been pursued throughout by only two men. Towards the end of the attack (which was initially with other weapons) a replica samurai sword was produced by an assailant and driven into Connelly's lower back on the left side. It penetrated the chest cavity, the lung and the diaphragm and damaged the spleen, pancreas, gall bladder and several important blood vessels. The wound was about 20 centimetres deep and caused massive internal haemorrhaging which led to Connelly's death. This weapon may also have been used to inflict a number of cutting injuries to his head and face, though these injuries may have been caused by a different sharp instrument (a hooked implement) wielded by an assailant. Both these weapons were bloodstained with blood which matched the deceased's DNA. He had sustained additionally a number of defensive wounds. His head and body also showed signs of many blunt force injuries.
[6] Immediately afterwards the appellants made their way to a neighbouring house where, having threatened the occupants, they concealed weapons, including the sword and certain baseball bats, as well as items of bloodstained clothing, in a bedroom. This latter action led to their conviction on the third charge.
[7] The Crown's position at the trial was that the fatal wound with the sword had been inflicted by the first appellant towards the end of the attack on Connelly. The Advocate depute submitted to the jury that at that stage the second appellant was a participant in a murderous assault and should be convicted, art and part, of the murder. Alternatively, she submitted that the evidence could support a version of events to the effect that, at the time when the sword was used, all four accused were participant in an assault and that all four might, if the jury accepted that version, be convicted of murder. It was clear from their verdict that the jury held as proved the first of these two versions of events.
[8] The trial ran for some twenty days with a number of interruptions. The first appellant did not give evidence. However, there were placed before the jury video and audio tape recordings of an interview which he had had with police officers under caution on 3 January 2002. In that interview he stated that, against the background of the attack upon his house earlier described, he had emerged and participated in the chase of and an attack on Connelly. He insisted, however, that the only weapon he had used in that attack was a bamboo cane. He had done so when the deceased had turned on him with a knife. It was the evidence constituted by that statement which was advanced at the trial by counsel for the first appellant as the primary basis for the contention that he had acted in self-defence and, in any event, under provocation. (As noted later, a reference in her speech to the jury to culpable homicide may suggest, though the passage is far from clear, that counsel was leaving open the possibility that the jury might find that the first appellant was involved in a more serious attack upon the deceased leading to his death but that his responsibility for that death was mitigated by provocation.) The jury by their verdict clearly rejected these pleas.
Submissions for the appellants
[9] In his written (substituted) grounds of appeal the first appellant advanced four grounds, the last of which was that there was "no evidence available to the jury which would have entitled a reasonable jury properly charged to convict the appellant of murder". That last ground was not insisted on by Mrs. Stacey on behalf of the first appellant. She advanced argument, however, in relation to the first three grounds. These related to certain criticisms directed against the charge given to the jury by the trial judge, being criticisms not of what he had said to them but rather of what he had failed to say. (Suggestions in the written grounds of appeal that the trial judge had mis-stated the evidence in so far as it related to the first appellant were withdrawn.) These criticisms, advanced against the background of the length and complexity of the trial and the confused state of the evidence led at it, were of omissions in the trial judge's treatment of self-defence and of provocation and of the basis upon which the jury might find that the first appellant was actor in the use of the sword.
[10] The trial judge, in elaborating on the matter of the onus of proof, referred (at pages 10-11 of his charge), by way of example, to the fact that the first appellant had put forward a special defence of self-defence. He explained that it was for the Crown to disprove that defence. Shortly thereafter (at pages 13-16) he gave to the jury general directions as to the use which they might make of extrajudicial statements which were "mixed" statements. Shortly thereafter he returned to the matter of special defences, including those of self-defence and of alibi, one of the co-accused having advanced the latter defence. The following day the trial judge, in continuing his charge, gave to the jury directions on what was constituted by the defence of self-defence, including the three "conditions" of that defence.
[11] None of these observations or directions was criticised by counsel as being inaccurate. It was said, however, that in the passage at pages 10-11 the jury might have been confused because the trial judge, in referring to the appellant's defence of self-defence, had made no reference to the first appellant's extrajudicial statement, referring only to those of two of the co-accused. It was also submitted that the trial judge should, when giving directions on the use of extrajudicial statements, have elaborated as to the content of the first appellant's statement at interview - in particular, on the way, on the basis of that statement, self-defence might arise or might give rise to a reasonable doubt. It was further submitted that the judge's language when describing self-defence had been unfortunate: he had spoken (at page 40) of acquittal on the basis of self-defence "if each of three conditions was satisfied" and (at page 43) of the jury taking the view "that the accused has passed all of these three tests". This tended to suggest that the onus of establishing self-defence was on the accused. The judge had not fairly represented the appellant's position (or that of his trial counsel) in suggesting to the jury that, after the chase, the situation (of the siege of the house) was over and that they...
To continue reading
Request your trial
-
W.m. V. Her Majesty's Advocate
...SCCR 800 Sneddon v HM AdvocateSCUNK [2005] HCJAC 41; 2006 JC 23; 2005 SLT 651; 2005 SCCR 367 Touati and Gilfillan v HM AdvocateSCUNK [2007] HCJAC 73; 2008 JC 214; 2008 SLT 241; 2008 SCCR 211; 2008 SCL 436 Young v HeatlySCUNK 1959 JC 66; 1959 SLT 250; [1959] Crim LR 438 Textbooks etc. referr......
-
William Johnston (junior)+charles Woolard V. Her Majesty's Advocate
...SCCR 254, Steele v HM Advocate 1992 JC 1, Robertson v HM Advocate, Meyl v HM Advocate 2005 SCCR 338 and Touati and Gilfillan v HM Advocate 2008 JC 214. In the recent cases of Ferguson v HM Advocate 2009 SCCR 78 and Hopkinson v HM Advocate [2009] HCJAC 9 the court expressed its agreement wit......
- Black v HM Advocate
-
Alexander Woodside V. Her Majesty's Advocate
...have influenced the jury's deliberations and decision on the case against him. Mr Shead referred to Touati and Gilfillan v HM Advocate [2007] HCJAC 73, 2008 JC 214, 2008 SCCR 211 as an example of a case broadly similar to the present in which a verdict of culpable homicide was ultimately su......