A murder conviction has been quashed on appeal where in terms of the jury's verdict the accused did "cause [the deceased] to fall down a flight of stairs", but the only means alleged of causing the fall, pushing the deceased, had been deleted.
The Criminal Appeal Court commented that the trial judge should have followed a suggestion by senior counsel for the defence that the judge might address the jury further and ask them to reconsider.
The appeal was brought by Ralph Goldie, who went to trial on a charge that he assaulted and pushed Jeremy Paradine, caused him to fall down a flight of stairs, throw a vacuum cleaner at him, repeatedly kick, stamp and jump on his head and body, and did murder him. The verdict returned was that he "did assault Jeremy Paradine,… cause him to fall down a flight of stairs, repeatedly kick, stamp and jump on his body, and you did murder him”.
On the evidence, the deceased sustained a fatal, and an unsurvivable, head injury caused in a fall down the stairs; the remaining injuries, whilst serious and life threatening, did not cause the death and were inflicted after the fatal head injury caused by the fall. The pathologist could not say whether the head injury was caused by a fall, a push, an accidental nudge or a trip.
The accused's girlfriend, the deceased's former wife, gave evidence that the accused had admitted the push and the further assault, but altered her position on being cross-examined on the basis of a prior inconsistent statement. The trial judge did not refer to the particular acts libelled in directing the jury on what was necessary to prove the charge.
Delivering the opinion of the court, Lord Justice Clerk Lady Dorrian, who sat with Lords Brodie and Turnbull, said this was not a case where the Crown might seek to prove a murder by means unknown. "The only basis upon which a verdict of murder might reasonably follow was acceptance by the jury of the evidence of the appellant’s alleged admission... of deliberately pushing the deceased down stairs. Without that evidence there was no evidence from which death could be attributed to a deliberate act of the deceased...
"The word 'cause' does not itself carry with it any murderous implication. The deletion of the word 'push' however suggests that the jury were not satisfied on the evidence... as to the nature and extent of any admission by the appellant."
Lady Dorrian observed that "The verdict of a jury is, of course, not given in isolation, but as part of a framework which includes the speeches of counsel and the directions of the trial judge... From this framework, including the evidence and the libel, the basis of any conviction should be discernible. This may not follow if the trial judge’s directions are incomplete, fail to identify all the matters which the Crown required to establish for conviction, or are in any way confusing."
In the present case, the charge had not been well structured, and the directions on murder and culpable homicide were given "in the most general terms without reference to the specifics of the case". There was no recognition that the basis of the case, whether murder or culpable homicide, was a deliberate assault in the form of a push which caused the deceased to fall down the stairs. The matter was compounded by the fact that the directions on culpable homicide contained references to recklessness or gross carelessness, which related to a form of culpable homicide which was never in issue.
She concluded: "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."
Click here to view the opinion, which is dated 31 August 2018 but has only now been released. The court granted authority to bring a new prosecution, following which the accused was sentenced to six years and nine months’ imprisonment after pleading guilty to culpable homicide.