Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Macfadyen Lord Eassie Lord Marnoch

[2008] HCJAC14 Appeal No: XC24/05   OPINION OF THE COURT   delivered by LORD MARNOCH   in   APPEAL AGAINST CONVICTION   by   BRYAN JOHN DONALDSON   Appellant;   against   HER MAJESTY'S ADVOCATE Respondent.

 

 

Act: Burns, QC,; Balfour + Manson LLP

Alt: K. Stewart, AD,; Crown Agent

 

19 March 2008

[1] In this case the appellant was convicted of the following amended charge:

"You having formed the intention to kill Margaret Anne Penrose or Donaldson, c/o Central Scotland, Stirling, your wife and to benefit financially from her death, did between 1 January 2003 and 30 October 2003, both dates inclusive, at Glendochart Caravan Site, Luib, by Crianlarich (a) induce said Margaret Anne Penrose or Donaldson to enter into a contract of life insurance on the joint lives of you and said Margaret Anne Penrose or Donaldson in the sum of £100,000 payable on the first death of you or said Margaret Anne Penrose or Donaldson; (b) attempt to induce said Margaret Anne Penrose or Donaldson to execute a Will leaving her whole estate to you as sole beneficiary in the event of her pre-deceasing you; and (c) on 30 October 2003 at Rose Cottage, Glendochart Caravan Site, Luib, by Crianlarich, assault said Margaret Anne Penrose or Donaldson, seize her by the head, struggle with her, push her head towards an open fire, ignite a quantity of fireworks causing them to explode and detain her in said cottage against her will all to her severe injury and you did attempt to murder her."

[2] Two grounds of appeal were argued before us and it is convenient to deal first with the second of these which was argued only briefly. In describing to the jury what was meant by "severe injury" the trial judge at one point in his charge contrasted it with injuries which could be described as "trivial". This, it was said, was an "undue simplification". As became rapidly apparent, however, this fault on the part of the trial judge, if fault it was, could have had no material bearing on the jury's verdict in the present case for the simple reason that that verdict, in so far as finding guilt of attempted murder, clearly proceeded on the basis not of the degree of violence used but of an actual intention to kill.

[3] The remaining ground of appeal arose out of the following passage in the judge's charge:

"The next thing, ladies and gentlemen, that I want to say something about is a chapter headed evidence. Now you'll be surprised that such a chapter exists because I said I wasn't going to usurp your function and go through the evidence and I'm going to abide by my promise, I'm not going to do that. I don't intend to rehearse the evidence and you may think, ladies and gentlemen, the real issues for you in this case is whether Mrs Donaldson was assaulted by her husband and if so what the consequences of any such assault were - that is one matter - or on the other hand as I understand the accused's position that this was an elaborate hoax by her as an act of revenge for his infidelity. That really seems to be the issue at the end of the day for you and in seeking to reach your decision and your verdict in this case, you have to assess the evidence of each witness in exactly the same way whether he or she is a witness for the Crown or the defence."

[4] This, it was said, also involved an undue simplification or misinterpretation of the appellant's position and the words "elaborate hoax", echoing, as they did, an expression used by the Advocate Depute in his closing speech, were highly tendentious and likely to lead to a miscarriage of justice.

[5] In considering this ground of appeal it is right to note that the trial judge's reference to the "real issue(s)" to be decided cannot have been a reference to what might be termed the ultimate issue in any criminal trial, namely whether the Crown has established the guilt of the accused according to the necessary standard of proof. This, indeed, was repeatedly pointed up by the trial judge in the present case. Rather do we think, therefore, that, read in its context (viz. that of the "evidence") the trial judge was simply focusing on what is so often a crucial matter, namely the credibility and reliability of the complainer.

[6] Read in that way the passage in question is, we think, not far off the mark. This, after all, was a case in which, if she was not telling the truth, the complainer had not only told lies but had either fabricated or misrepresented real evidence ranging from the igniting of fireworks and the starting of a fire to the twisting of a door handle, a trail of blood and the breaking of windows. In these circumstances the Advocate Depute was, we think, well founded in his submission that what was required was a word inferring not only dishonesty but deception. In cross-examination the appellant himself, as it happens, at one point agreed with the Advocate Depute that a correct description was "a set-up". In our opinion, therefore, while the word "hoax" may not have been ideal, its use in this case cannot remotely be seen as productive of either unfairness or a miscarriage of justice.

[7] The appeal is accordingly refused.