Cumbernauld man who stabbed upstairs neighbour in doorway loses appeal against attempted murder conviction

Kevin McGrouther argued that the trial judge had misdirected the jury by not giving any direction on the possibility of deleting the aggravation of attempted murder from the charge. At trial, he had led a special defence of self-defence.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull.

Degree of animosity 

Both the appellant and the complainer lived in flats on Cedar Road in Cumbernauld, with the appellant’s flat located directly below the complainer’s flat. There was said to have been a high degree of animosity between the two of them since the complainer had moved to Cedar Road.

The evidence of the complainer was that at 5:30am on 18 September 2018 he heard the appellant shouting up the communal stairway. When he went down to knock on the appellant’s door, he opened it and stabbed him in the chest. The complainer was able to return to his flat and phone an ambulance.

The complainer sustained a single incised wound to the chest which fractured his sternum and caused significant bleeding. He required treatment which included having his chest opened through the sternum revealing bleeding from a 1cm laceration in the right upper chamber of the heart. Had he not received swift medical treatment he would have died as a result of these injuries.

The appellant told the police that the complainer had threatened him with a loaded crossbow and that he had fetched the knife from his kitchen after the complainer had refused to leave. The stabbing was an unintended result of an attempt to elbow the crossbow out of the way. Evidence was also led that he had told a friend of his that he had stabbed someone in self-defence.

It was submitted for the appellant that the trial judge, while giving accurate directions for the definition of attempted murder and the concept of self-defence, had misdirected the jury by telling them that there may not be “much scope for deleting anything” in the charge due to the case being presented as either an attempted murder or self-defence. 

It was accepted that trial counsel for the appellant had not canvassed the possibility of a reduced verdict of guilty in his speech to the jury. However, the trial judge had misunderstood matters if she had inferred any form of concession from what counsel had said to the effect that if the jury rejected self-defence then the only verdict would have to be that of guilty of attempted murder.  

Counsel for the appellant went on to note that the advocate depute had made it plain in her speech that one of the issues the jury had to determine was whether the appellant should be convicted of attempted murder or a lesser offence. As it had been put in issue by the Crown, a direction on the possibility of a guilty verdict with deletion of the aggravation of attempted murder ought to have been given. 

Only reasonable conclusion 

The opinion of the court was delivered by Lord Turnbull. Evaluating the content of trial counsel for the appellant’s speech to the jury, he said: “The transcript of trial counsel’s speech to the jury makes it clear that his essential purpose was to support the contention that the complainer had arrived at the appellant’s door armed with a crossbow and to undermine the complainer’s evidence to the effect that he had not.” 

He continued: “The issue from the defence perspective was the honesty of the complainer’s account. It was not suggested that there was any other issue for the jury to assess. Nothing which was said by defence counsel at any stage in his speech could have been construed as an invitation to consider any alternative verdict.” 

Of the contention that the Crown had placed the issue of lesser verdicts before the jury, he said: “The advocate depute invited the jury to conclude that the appellant either intended to kill the complainer, or he was acting with a wicked recklessness as to whether he lived or died, which, she accurately stated, would constitute attempted murder.” 

He continued: “This was an integral part of her function, which was undertaken in an appropriate and conventional manner. It is entirely artificial to attempt to construe these passages of her speech as setting out a distinction between attempted murder and a lesser verdict.” 

Lord Turnbull concluded: “The only live issue in the case was whether the appellant was acting in self-defence. Once self-defence had been rejected beyond reasonable doubt the only reasonable conclusion to draw from the appellant’s conduct was that he acted with wicked recklessness. There is no sense in which the prospect of a verdict under deletion of attempted murder was an obvious one.” 

For these reasons, the appeal was refused.