APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Bonomy Lord Philip	[2012] HCJAC 38 XC353/11 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST CONVICTION by DONALD McDADE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Shead; Paul Hannah, Glasgow

Respondent: Brodie Q.C.; Crown Agent

2 March 2012

[1] On 17 March 2011, at the High Court in Glasgow, the appellant was found guilty of the culpable homicide of Thomas Murphy at 12 Oatfield Street in the city on 16 December 2009.

[2] The libel was that the appellant had punched the deceased on the head, struggled with him, caused him to fall down a flight of stairs and repeatedly struck him with a knife, all to his severe injury and, in consequence, the deceased had suffered a fatal heart attack. In returning their verdict, the jury deleted the references to punching, struggling, falling downstairs and the severity of the injury. The verdict was therefore one of killing the deceased by repeatedly stabbing him, as a result of which he had suffered the heart attack.

[3] The evidence revealed that the deceased, who was aged 58, had not been in good health. He had been a heavy smoker and had significant narrowing of the arteries. In addition, the heart was thickened by hypertrophy, brought about by high blood pressure. He was accordingly constitutionally at risk of a heart attack at any time.

[4] The circumstances of the offence were that the deceased had been telephoned at home by the appellant and asked to go round to his flat. The deceased had been frustrated and anxious about the content of the telephone call. It may have concerned the deceased's brother in-law, David Kerr, who lived in the flat below that of the appellant and with whom the appellant drank. The deceased arrived at the appellant's door, where an altercation took place between the appellant, the deceased and Mr Kerr. This may have involved aggressive behaviour on the part of the deceased, who habitually carried a walking stick. It resulted, one way or another, in a physical confrontation, culminating in all three participants falling down the stairs and ending up on a lower landing. Mr Kerr had a cut head.

[5] At some point in the course of the incident, the appellant had stabbed the deceased three times, albeit in what turned out to be a relatively minor, but not trivial, way. There had, however, been a considerable effusion of blood as a result. The deceased was taken into a neighbouring flat where he expressed his concern that the appellant had stabbed him. He had also been anxious about Mr Kerr. A number of paramedics arrived at the flat. The deceased was not initially in any obvious, serious discomfort. He had planned to drive himself to hospital. Within 10 or 15 minutes of the arrival at the paramedics, the deceased suffered the heart attack and died very soon afterwards.

[6] The evidence therefore was that there had been a number of "stressors", as they were described, which might have, and in all probability did, contribute to the deceased's heart attack. There was his underlying condition, the psychological distress before the incident, the altercation at the flat door, the fall down the stairs, the stabbing, the deceased's concern about Mr Kerr and his own anxiety about having been stabbed. Medical witnesses spoke to these having had a cumulative effect to produce the heart attack. However, the stabbing was a contributory factor in the matrix of stressors.

[7] The appellant was found criminally responsible only for the stabbing and its effects. In that regard the trial judge rationalised the jury's verdict on the basis that they may have considered that the other elements of the libel had taken place in self-defence but, in contrast, the stabbings had amounted to cruel excess.

[8] The appeal was presented on two grounds. First, it was said that there was insufficient evidence upon which a jury could find that the appellant's criminal actions had caused the death, in the sense of being a "substantial direct cause of the heart attack ... even if there were other causes also operating" [charge p19]. The manner in which the ground of appeal was framed and argued was that the trial judge had erred in repelling a submission to that effect, which had been made at the conclusion of the evidence. The argument was that the jury would have been unable to determine which stressor, including the pre-existing heart condition, caused the death.

[9] The court is unable to accept this argument. At the time when the submission at trial was made, the appellant remained charged with all the various elements of the assault in the original libel. There was ample evidence from the medical experts that those elements, as stressors, would have been contributory factors in the cumulative total causing the heart attack. That being so, it would inevitably have been a matter for the jury to decide whether the elements found by them to have been criminal had made a significant contribution to the onset of the heart attack. The trial judge was therefore correct in repelling the submission.

[10] The second ground of appeal was that the jury's verdict was an unreasonable one in that they had excised all the physical elements of the assault, other than the stabbing, yet at the same time had held that the stabbing was a significant contributory factor in the death. The contention was that it would not be reasonable to single out that element, when the medical experts had referred to all the stressors as potential contributors and had testified that no single factor took precedence in any hierarchy of causes. Reference was made to the test for the judicial scrutiny of jury verdicts in King v HM Advocate 1999 JC 226, AJE v HM Advocate 2002 JC 215 and Jenkins v HM Advocate 2011 SCCR 575, endorsing the approach of the Canadian courts.

[11] The court is unable to accept this submission. As was said by Lord Reed in Johnston v HM Advocate 2009 SCCR 518 (at para [56]), to which the court's attention was drawn: "Whether [a] causal connection has been established in a particular set of circumstances is a question to be determined by the jury, applying ... their common sense". Only the jury were in a position to assess the whole evidence, not just the medical opinion, and to determine which of the stressors would have made a substantial direct contribution to the deceased's heart attack. Having regard to the anxiety that any person is likely to suffer in consequence of realising that he has been stabbed several times, it was open to the jury to conclude, as a reasoned assessment, that the use of the knife was a significant stressor to the deceased's constitution, albeit as otherwise affected by his underlying heart disease and the more immediate psychological and physical stressors, such that, as a matter of fact, it was a substantial direct cause of his death. The court is satisfied that the jury, who had been properly directed on that issue, were entitled to be satisfied beyond reasonable doubt of that contribution.

[12] In these circumstances, this appeal must be refused.

Aud