Killers of Glasgow man murdered with knife and hammer lose appeals against conviction

Mark Moncrieff and Paul McCann were convicted of murdering Brian Boyle by repeatedly punching and kicking him as well as repeatedly striking him with a hammer and a knife. Mr Moncrieff maintained that he was acting in self-defence. A third accused, Domenica Smith, was acquitted of the same charge.

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

Knocked to the ground

On 9 July 2018 the three accused and another man, Mark Arnaud, drove to Mr Boyle’s flat, where he lived with his partner Maria and daughter Kayleigh. Domenica Smith was seen by witnesses jumping on the bonnet of Kayleigh’s car “like a trampoline” and shouting to her “Come down, I’m going to murder you”. Another witness said that she was shouting that “they were all grasses”.

Kayleigh Boyle, her partner Kristopher Hughes, and the deceased ran downstairs where there was an altercation. Mr Boyle, who was described by 3 witnesses as unarmed, was confronted by the appellants. Mr McCann had a hammer and Mr Moncrieff had a knife. The two appellants knocked Mr Boyle to the ground and struck him with the hammer and knife.

The post mortem report showed that Mr Boyle had sustained two stab wounds and a further incised injury consistent with a knife attack. One of the stab wounds penetrated the heart and was the fatal wound. He also sustained a number of injuries which were consistent with being struck with a hammer.

At trial, counsel for Mr Moncrieff suggested that if the jury did not acquit there were two bases for conviction for culpable homicide. Whilst the first appellant had inflicted the fatal blow, he did not do so intentionally or with wicked recklessness. On appeal, it was submitted that the trial judge misdirected the jury by not directing that they would need to consider whether or not Moncrieff was aware of McCann having and using a hammer. This was a significant matter since, even rejecting provocation, there was a basis for convicting of culpable homicide.

It was also submitted that the trial judge had misrepresented the position of the first appellant as to provocation. In his charge he said that it was accepted that Moncrieff did not say that he had lost his temper or say he had acted in hot blood. In fact, counsel submitted that acting in hot blood was only one factor to be considered, it simply meant that reaction had to be immediate. It had not been conceded that Moncrieff did not act in hot blood. The fact that Moncrieff had not said he acted in hot blood did not exclude provocation.

Nigh on inconceivable

The opinion of the court was delivered by Lady Dorrian. She first addressed the second appeal ground regarding the trial judge’s comments on acting in hot blood, saying: “The trial judge’s observations did not rule out the possibility that the jury might find the appellant acted in hot blood: had he done so he would have been bound to withdraw provocation from the jury. He left it open to them to find that there was provocation, notwithstanding the evidence of the appellant that he picked up the weapon and used it on an unarmed man.”

She continued: “On the appellant’s own evidence at the point when he repeatedly stabbed Brian Boyle, Boyle was unarmed. It is difficult to see this as a proper basis for the plea of provocation, and the trial judge acted favourably towards the appellant by leaving the issue of provocation to the jury. We do not consider that the trial judge misrepresented the position of the appellant and this ground of appeal must fail.”

On the first appeal ground, she said: “The only basis upon which a verdict of culpable homicide rather than murder could have followed would be if the jury considered that Moncrieff’s actions were not so wickedly reckless as to constitute the necessary mens rea for murder. It was in this context that the question of what McCann might have been doing at the time arose. Moncrieff could have been convicted of murder on the basis of his own actings alone; the relevance of what McCann might have been doing at the time was that it might assist the jury in assessing the quality of Moncrieff’s actions to know whether he used the knife at the time when McCann was also attacking the deceased with a hammer.”

She continued: “Unlike a knife which may be concealed up a sleeve, or which in the speed of events may not be seen, a hammer is a more difficult weapon to conceal. It is nigh on inconceivable that Moncrieff would not have been aware of it, if McCann were attacking the deceased with a hammer at the time Moncrieff used the knife.”

She concluded: “The trial judge, in the very sentence criticised referred to a ‘concerted attack’, and he went on to say that ‘if there is concert’ then that is the evidential basis upon which state of mind must be assessed. The repeated reference to concert is clearly an indication to the jury that that legal principle, which he had already explained in detail, was what required to be considered in assessing Moncrieff’s state of mind. In our view there is no likelihood that the jury would have misunderstood the position, or might have considered that the quality of Moncrieff’s actions could be assessed by reference to something of which he was unaware. As is repeatedly observed, a judge’s charge must be looked at as a whole. Doing so provides no basis for concluding that there was any misdirection and the appeal must be rejected.”

For these reasons, the first appellant’s appeal was refused. As the second appellant’s case hinged on the first appellant being successful, no consideration needed to be given to his position and thus his appeal was also refused.