Murder conviction quashed after amended charge resulted in ‘contradictory’ verdict
A man found guilty of murdering his friend after causing him to fall down a flight of stairs and repeatedly kicking and stamping on his head and body has successfully appealed against his conviction.
Ralph Goldie was convicted of killing Jeremy Paradine following a drunken fight in a flat he shared with the deceased and his wife, but the High Court of Justiciary Appeal Court ruled that the jury’s deletion from the charge of the word “push”, which was what caused the death, resulted in a “miscarriage of justice”.
The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull, heard that the appellant was charged (charge 2) with the murder of the deceased by pushing him on the body, causing him to fall down the stairs, and repeatedly kicking, stamping and jumping on his head and body, but after trial the jury deleted the word “push”.
The appellant was also convicted of an assault on Martin McQueenie, by repeatedly punching and kicking him on the head and body, all to his severe injury.
That charge (3) had originally contained an averment that he “did push, kick or otherwise strike [the complainer], cause him to fall down a flight of stairs”, but the jury deleted these, and other averments.
After the jury announced their verdict, but before it was recorded, senior counsel addressed the court submitting that the jury’s deletion of the word “push” rendered their verdict inconsistent with the directions given, and self-contradictory.
He submitted that the trial judge’s directions had been to the effect that the jury had to be satisfied that the now appellant propelled, in some way, the deceased down the stairs whereas in terms of their verdict the jury had deleted the only method of propulsion which had been suggested; “cause him to fall down a flight of stairs” did not, in itself, amount to an assault.
Senior counsel submitted that the trial judge should decline to accept the verdict, remind the jury of the relevant directions and ask them to retire and reconsider their verdict.
After retiring to consider the matter, the trial judge concluded that the jury had returned a lawful and competent verdict which should be recorded.
Goldie appealed against his conviction, arguing that, by their verdict, the jury had deleted the only specification by which a murderous assault was said to have been committed.
The court was told that the trial judge gave the jury directions as to what, in law, constitutes murder and culpable homicide, before reminding the jury of the evidence of the forensic pathologist, which was that the cause of death was the head injury occasioned by Mr Paradine coming down the stairs at the flat.
Accordingly, evidence that the appellant repeatedly kicked, stamped and jumped on the deceased’s body when he was at the bottom of the stairs, while very obviously relevant to assault, as libelled in charge 2, was of no relevance to the “actus reus” of murder or culpable homicide.
On behalf of the appellant it was submitted that the trial judge ought to have declined to accept the verdict, reminded the jury of the relevant directions and asked them to retire and reconsider their verdict, all as submitted to him by senior counsel for the appellant.
The trial judge’s refusal to adopt the suggestion of senior counsel for the appellant meant that the basis upon which the appellant was convicted of murder was not made clear, it was argued.
Allowing the appeal, the judges held that the deletion of the word “push” from the charge rendered their verdict “self-contradictory”.
‘Miscarriage of Justice’
Delivering the opinion of the court, the Lord Justice Clerk said: “Given the evidence of the forensic pathologist, what was required from the trial judge was a clear direction to the jury that in order for them to convict of either murder or culpable homicide they had to be satisfied that the appellant had committed an assault on the deceased which had caused him to fall down the stairs.
“Because the only form of assault which had been suggested in the evidence was a deliberate push, as spoken to by Maryanne Paradine as having been admitted by the appellant, to convict of either murder or culpable homicide the jury therefore had to be satisfied that the appellant had deliberately pushed the deceased and that deliberate push had caused the deceased to fall down the stairs.
“Only if the jury were so satisfied did the further question arise, whether it had been established that the appellant had the necessary mens rea for murder in the form of a wicked intention to kill or wicked recklessness.
“For all his quotations from the jury manual, the trial judge did not give such a direction. It may well be that this failure to emphasise the critical importance of the allegation of a push contributed to confusion on the part of the jury as to precisely what required to be proved.
“At all events, they returned a verdict which we consider is both self-contradictory and inconsistent with the directions that the judge did give. That was apparent at the time the verdict was returned and called for clarification.
“The trial judge should have taken the course of action urged upon him by senior counsel for the appellant. His failure to do so leaves a verdict from which, taking into account both the evidence and the judge’s charge, the basis of the appellant’s conviction for murder cannot reasonably be discerned. We are satisfied that the result is a miscarriage of justice and the appeal must succeed.”
The court granted authority to bring a new prosecution, following which, at the High Court in Glasgow last month, Goldie was sentenced to six years and nine months’ imprisonment after pleading guilty to the culpable homicide of the deceased.
© Scottish Legal News Ltd 2020