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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Dawson (aka McGrath) v. Her Majesty's Advocate [2003] ScotHC 3 (30 January 2003) URL: http://www.bailii.org/scot/cases/ScotHC/2003/3.html Cite as: [2003] ScotHC 3

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Dawson (aka McGrath) v. Her Majesty's Advocate [2003] ScotHC 3 (30 January 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord MacLean	Appeal Nos: C956/02 XC120/02 OPINION OF THE COURT delivered by LORD MacLEAN in APPEAL AGAINST CONVICTION and SENTENCE by ANTHONY JOHN ROBERT DAWSON otherwise known as McGRATH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: D. S. Burns, Q.C., Kennedy (14.1.03): D. Hughes (15.1.03); Robert W. Mercer, Paisley

Respondent: J. Johnston, A.D.; Crown Agent

30 January 2003

1. On 2 November 2001 at the High Court at Kilmarnock the appellant was convicted of the following offence, namely that on 26 February 2001 on the common landing at 117 Dalswinton Avenue, Lochside, Dumfries, he did assault Rhona Catherine Morrison, 44 Babbington Drive, Dumfries, having evinced prior malice and ill will towards her and did repeatedly punch her on the face, slash her on the face and neck and repeatedly strike her on the body with a knife whereby she was so severely injured that she died from those injuries on 5 March 2001 at Dumfries and Galloway Royal Infirmary, Dumfries and that he did kill her. The charge upon which he stood trial was one of murder. The jury, however, convicted him of culpable homicide. He was sentenced to 12 years imprisonment, of which two years was the extension period. He has appealed against both conviction and sentence.
2. The appellant lived in a first floor flat at 117 Dalswinton Avenue, Lochside, Dumfries with his partner, Laura Little, and their two children. The victim, Rhona Morrison, lived in a block of flats nearby. There was a history of ill will between the two. On 1 January 2001, Rhona Morrison's flat was broken into and certain items were stolen, including a personal computer which was a gift to her daughter. She believed that the appellant and others were responsible for the break-in and theft. She reported to a friend that, earlier on the day she was assaulted, the appellant, on seeing her, drew his finger across his neck and pointed at her. As the trial judge notes in his report, the jury must have accepted that evidence because they found it established that the appellant had previously evinced malice and ill will towards Rhona Morrison.
3. Sometime after 8.00 pm Rhona Morrison set out from her house, taking with her a large hunting knife which belonged to her. She was then uninjured. Her friends believed that she had set out to visit the appellant's house with the intention of causing trouble there. They were well founded in their belief. It was not the first time since the break-in to her house that she had called at the appellant's house to remonstrate violently with the appellant and Laura Little.
4. On that night when she arrived at the appellant's house, she began striking the front door of his house with planks or big pieces of wood. Inside the flat were the appellant, Laura Little, their two children and Christopher McGrath, the appellant's brother, whom the appellant incriminated in respect of the offence upon which he later stood trial. The three adult occupants of the house all left it. Once outside on the landing, they found Rhona Morrison behaving very aggressively with the hunting knife in her hand and saying that she was going to kill the appellant.
5. What happened thereafter is not entirely clear, but in the course of a struggle on the first floor landing Rhona Morrison sustained three serious injuries to her head and body, all of which were caused by a knife and were consistent with the use of her own knife. No other knife was spoken to in evidence. Despite her injuries and a considerable loss of blood, Rhona Morrison was able to descend the stairs at the foot of which she collapsed. The knife was found there in her possession. Laura Little summoned an ambulance which later arrived and took Rhona Morrison to Dumfries and Galloway Royal Infirmary, Dumfries. The appellant left the scene as Laura Little was making the 999 call to the police and ambulance services and so must have passed Rhona Morrison at the foot of the stairs on his way out.
6. When Rhona Morrison was examined in hospital she was found to have three major injuries. There was a slash type injury across the right side of the lower jaw and into the earlobe. This would have bled considerably and required the infliction of moderate force. There was a stab wound to her back, the depth of which indicated that, if her knife had been used, the whole of its blade had penetrated her body. Finally, there was a stab wound to the chest which penetrated one of the chambers of the heart. To inflict this wound required a significant amount of force. Despite surgical operation, Rhona Morrison died several days later of Adult Respiratory Distress Syndrome as a result of the stab wound to the chest.
7. According to the evidence of the pathologist, Dr Clark, while the first of the injuries we have narrated could have been accidental or even self inflicted, it was most likely that the other two injuries were deliberately inflicted. He concluded that what he saw by way of injuries to the head and body required an assailant. Since the injuries were all sustained on the landing outside the appellant's flat, they must have been inflicted by one or more of the other three who were on the landing at the time, namely, Laura Little, Christopher McGrath and the appellant.
8. The ground of appeal advanced on behalf of the appellant is, in effect, that there was insufficient evidence of either a positive nature or by exclusion to identify the appellant as the person who had inflicted the three knife wounds on the deceased, and, in particular, the fatal wound to the chest. The Crown case was, of course, that the appellant was the assailant.
9. It is maintained in the ground of appeal that the trial judge erred in holding at the close of the Crown case that there was sufficient corroborated evidence implicating the appellant in the offence libelled, and so in repelling the submission of no case to answer. He also failed to direct the jury in his charge, after all the evidence had been led, that there was insufficient corroborated evidence implicating the appellant.
10. In support of the ground of appeal Mr Burns, who appeared for the appellant, referred us to a transcript of the evidence given at the trial by Laura Little and Christopher McGrath. He submitted under reference to passages in the transcript that there was a lack of both positive evidence and evidence by exclusion identifying the appellant as the deceased's assailant. The advocate depute, under reference to other passages in the transcript, maintained that Mr Burns' submission was ill founded.
11. We ourselves have read through the entire transcript of that evidence with particular reference, of course, to the passages founded on by counsel. It is clear from that evidence, as indeed it must, we think, have been clear to the jury, that both Laura Little and Christopher McGrath were reluctant witnesses who did not always give consistent evidence. The trial judge describes them as unsatisfactory witnesses. Indeed, having been advised by the trial judge at the outset of his evidence that he need not answer questions that he considered might incriminate him, Christopher McGrath, on several occasions availed himself of that advice and declined to answer certain questions, including the direct question whether he had stabbed Rhona Morrison. It is also clear that neither of these two witnesses ever saw a knife in the appellant's hand. What they did, however, speak to was a struggle between the appellant and the deceased in which blows were landed on the deceased by the appellant, both by way of a punch and a slap. (We note that in his report the trial judge says that the appellant in his evidence admitted punching and pushing the deceased). It is also apparent from the evidence of Laura Little and Christopher McGrath that they were trying to intervene in order to stop the appellant and the deceased fighting with each other. According to Laura Little, just after she saw the blood on the deceased's neck, she heard Christopher McGrath saying: "Stop it. Enough." Christopher McGrath admitted saying to the police that he told his brother to leave the deceased because she had a knife. Indeed, the role which Laura Little and Christopher McGrath presented in evidence was the role of peacemakers. Neither saw the other assault the deceased. On the contrary, the participants in the struggle were the appellant and the deceased. Laura Little said that the appellant could have punched the deceased on the chest and head. The jury may have considered this evidence of some importance in view of the location of two of the three serious knife injuries.
12. The jury also heard evidence that the appellant had earlier in the day made a gesture of violence towards the deceased; that he had left his own home while the deceased lay injured at the foot of the stairs and before the police and ambulance services had arrived, and some time ahead of his partner and his brother who also left the flat; and that in the course of the night the clothing that he had been wearing had been washed not once, but twice.
13. In our opinion there was evidence, both at the close of the Crown case and at the conclusion of all the evidence in the trial, from which the jury could infer that the appellant, having in some unexplained way armed himself with the deceased's knife, had inflicted the serious wounds upon the deceased and thus caused her death. They obviously did not believe the appellant's account of what had happened and, in particular, his evidence that it must have been his brother who was the deceased's assailant. The trial judge was therefore correct in repelling the submission of no case to answer and there was no error on his part in failing to direct the jury in his charge that there was insufficient evidence identifying the appellant as the person who inflicted the serious knife wounds on the deceased.
14. We therefore refuse the appeal against conviction.