High Court quashes culpable homicide verdict and replaces it with assault

The Appeal Court of the High Court of Justiciary has quashed a verdict of guilty of culpable homicide returned against a co-accused in a murder case, replacing it with a verdict of guilty of assault.

Weir MacKay was originally tried for murder along with co-accused Alan Doherty, who was convicted as libelled. The appellant contended that the verdict reached was in contradiction of the directions given by the trial judge. He also appealed against his sentence of 14 years’ imprisonment.

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

Contributing factor

The original charge each accused faced was of assaulting the victim, Karen Young, by restricting her breathing and striking her with blunt implements. The charge on which the appellant was convicted was in the terms of assaulting the victim and by means unknown to the prosecutor meantime repeatedly inflicting blunt force injuries to her head and body, killing her.

The appellant submitted that there was no evidence upon which the jury could have concluded that any injuries to the victim’s head or body made a substantial contribution to her death. The jury deleted all parts of the libel which narrated the acts which had caused the victim’s death and the verdict so returned ought to have been recorded as a verdict of assault.

The evidence led during the trial suggested that the appellant’s co-accused had carried out the attack upon Ms Young from which she died. Forensic examination found that DNA likely to have come from the appellant was found on a swab taken from Ms Young’s left hand. Evidence was also led that the appellant had tried to use a credit card belonging to her in a shop in Port Glasgow shortly after the estimated time of death.

The post mortem examination concluded that Ms Young had suffered several blunt injuries to the head and face, which was in keeping with an assault. On the last page of the report, the cause of death was given as compression of the neck and cocaine and methadone intoxication, with blunt force injuries to head as a potential contributing cause.

The appellant submitted that the charge was brought against him on the premise that he was acting in concert with Doherty. It was evident from the trial judge’s report that there was no direct evidence of the appellant carrying out any assault personally.

In his charge to the jury, the trial judge said that in order to prove murder, they would need to be satisfied that the accused did something to the victim that inflicted injury and was one of the causes of death or a substantial contribution. It was submitted for the appellant that based on that charge and the content of the forensic report there was no more than a theoretical possibility that the blunt injuries were a contributing factor.

A more obvious cause of death

The opinion of the court was delivered by Lord Turnbull. He began: ”It is clear from the trial judge’s charge that the Crown case against the appellant was presented on the sole basis that he had associated himself with everything that his co-accused had done to the deceased in the course of the whole attack on her. The trial judge summarised the Crown case against the appellant as being that he ‘associated himself with whatever was going on’. The jury evidently did not accept this approach to the case.”

He continued: “There was an obvious link between the conduct which Doherty was responsible for and the victim’s death. It was compression of the neck resulting in asphyxiation. Since, as the advocate depute explained, the verdict returned against the appellant was unexpected, there had been no focus in either the speeches or in the charge on the issue of causation in the context of the limited responsibility which was decided upon.”

Accepting that the injuries the appellant was held responsible for were serious, he said: “There was a method by which they could have made an indirect contribution. The anxiety associated with the assault resulting in these injuries had the potential to cause adrenaline to circulate through Ms Young’s body. In some circumstances an adrenaline surge of this sort could contribute to a cardiac arrhythmia.”

On whether this could have happened in this case, he said: “The fact that a pathologist cannot rule out a particular mechanism does not constitute evidence that this was in fact the actual mechanism of death. It could be different in a case in which there were no injuries capable of causing death on their own. In such a situation, in the absence of any other explanation, it may be that a forensic pathologist would be prepared to express the opinion that the stress of an attack had caused the deceased to suffer a cardiac arrhythmia which could not be detected at post-mortem examination.”

He continued: “Such opinion evidence could then provide a legitimate basis for a jury to hold that death was in fact caused by a cardiac arrhythmia. In the present case there is a competing and far more obvious cause of death, namely the compression of the neck resulting in asphyxia.”

Referring to the post mortem report’s assessment of the injuries, he concluded: “When the exercise of stripping out the blunt force injures for which Doherty alone was responsible is contemplated it becomes even clearer, in our opinion, that any link between the injuries for which the appellant was held responsible and the death of the victim becomes entirely speculative. In these circumstances we are persuaded that the submissions for the appellant should be given effect to.”

For these reasons, the verdict of culpable homicide was quashed and substituted with a verdict of assault. The court ordered that the case call again on a subsequent date to hear submissions in respect of the sentence to be imposed in respect of the amended verdict.