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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gardiner v. Her Majesty's Advocate [2007] ScotHC HCJAC_14 (16 February 2007) URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_14.html Cite as: 2007 SCCR 379, 2007 GWD 28-486, [2007] ScotHC HCJAC_14, [2007] HCJAC 14 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice Clerk
Lord Osborne
Lord Johnston
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[2007] HCJAC 14Appeal No: XC739/05OPINION OF THE COURT delivered by LORD JOHNSTON in APPEAL AGAINST CONVICTION
and SENTENCE by JOHN GARDINER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act:
Alt: K. Stewart, A.D.; Crown Agent
"(2) on
4 October 2004 at 1 Sinclair Drive, Helensburgh or elsewhere to the Prosecutor
unknown you did assault Margaret June Gardiner, your wife, residing there,
repeatedly strike her on the head with an instrument to the Prosecutor unknown
or by other means to the Prosecutor unknown did murder her and
(3) between
4 October 2004 and 3 December 2004, both dates inclusive, at 1 Sinclair Drive,
Helensburgh, 1 Langton Crescent, Pollok, Helensburgh Police Office, Dumbarton
Police Office and elsewhere with intent to defeat the ends of justice and to
conceal your guilt in respect of charge (2) hereof, you did;
(a) on
4 or 5 October 2004 remove the body of said Margaret June
Gardiner from
(b) between
1 Sinclair Drive aforesaid, wash and
clean the boot of said motor vehicle, a towel and clothing;
(c) between
falsely state to members of her
family, colleagues, friends and to police officers engaged in establishing her
whereabouts that she had left the house at 1 Sinclair Drive aforesaid in
possession of £500 of money and her passport and travelled to the South of
England or France;
and
(d) between
falsely state to said members of her
family, friends and police officers that she had contacted you by mobile
telephone and that you did not know her whereabouts;
and by these means you did attempt to
conceal the commission of these crimes and to divert police enquiries from the
investigation thereof and did attempt to pervert the course of justice."
[2] On
"on
He was found guilty of charge (3) in terms thereof.
[6] However, the
evidence revealed that at the locus, namely
[7] Before the
jury the Crown's position primarily was that the appellant had murdered his
wife substantially by the means averred in the original charge, namely striking
her on the head with sufficient force to kill her with some instrument. The appellant's position was disclosed
initially in a recorded conversation between him and his daughter Fiona which
took place in the police station at Dumbarton on
[8] The conversation
as recorded in writing by a police officer is in the following terms:
"Interview Room No. 1 at D.P.O. with
Fiona Gardiner so she could speak to her father John Gardiner at his request.
Fiona: - 'Is Mum dead?'
John:- 'I've told the Police'
Fiona: - 'Are you going to tell me?'
John: - 'Yes she's dead, I didn't murder her, I
killed her it was an accident'.
Fiona: - 'Where is she?'
John: - 'In the River Leven'
Fiona: - 'Where?'
John: - 'I've told the Police'
Fiona: - 'I don't care what you've told the Police
tell me'
John: - 'The bridge going out from the roundabout, the
first bridge'
Fiona: - 'When?'
John: - 'About
Fiona: - 'What happened?'
John: - 'Mum came home at lunch time and we had a
blazing row, she was making a sandwich and had a knife in her hand, she went for
me, I thought she still had a knife'
Fiona: - 'What happened after that?'
John: - 'I turned her and pushed her and she fell
down the kitchen steps'
Fiona: - 'How do you know she was dead?'
John: - 'She was dead'
Fiona: - 'You tell the police everything and your
going to tell them the whole truth and there is going to be no more lies',
Fiona then left quickly and upset".
As regards the police statement the relevant part is in the
following terms:
"Margaret told me that she intended
to phone up First National Bank to cancel the loan arrangement, I said she
couldn't as I had already redeemed some of the cheques sent, when I said this
Margaret flew into a rage, striking out at me with her right hand, I thought
she still had the knife in her hand but I later found out she didn't as it was
still lying beside the rolls.
I sidestepped her and gave her right
hand a turn, Margaret continued past me and out the back door, crashing head
first onto the concrete steps, blood seemed to just flow and flow and flow and
I think it was then I checked Margaret's neck and wrist but couldn't find any
pulse at all. I think it was then as
well that I turned her head, the back of her head had just caved in like an egg
shell. I could see bits. What looked like brain, there were bits and
pieces on the steps as well then sat down on the steps and the first thing I
thought was Bloody hell I have killed my wife.
I don't honestly know how long I sat there or what was going through my
head."
"The
appellant gave evidence on his own behalf.
He was aged 58 and had been married for 34 years. He had been a submariner based at
Faslane. He had been convicted only of
motoring offences. After leaving the
Navy he ended up massively in debt due largely to the excessive use of credit
cards. He was getting his marching
orders from Margaret who knew fine well he was using the credit cards. The loan he took out was to pay off the
credit cards. He did forge her
signature. She told him to. She knew about the loan. It came through.
They had an argument on the evening
before Monday 4 October. She had opened
the mail, seen the loan application and that it was not her signature. She said she now had a lever to get him to
go. He had started looking for a
flat. He was going to go on the Monday
but she came unexpectedly at lunchtime when she met her death. His police statement was the truth. She said she was going to phone and cancel
the loan. He said she could not as he
had had part of the money. She said "you
bastard". She came towards him. He thought she had a knife. He was near the open door. She rushed towards him and struck out. He turned her right hand. She went straight out the back door. There seemed to be blood everywhere. Her head was on the path and her body on the
steps. She was lying on her back. He sat on the steps. He eventually checked her pulse. She was dead.
He lifted her head. It was badly
damaged over the left ear. He saw
bone. It was a massive head injury. He thought he had killed her. He did not push her or force her out the
door. He did not mean her any harm. He had done nothing to cause her to go out
the open door.
He then moved her body to the
bath. He wrapped a towel round her
head. He cleaned up. He moved her body about
[13] Against that
background the appellant lodged four grounds of appeal in the following terms:
"1. In
terms of Charge 2, the appellant was indicted to the effect that he
did assault his wife, Margaret June
Gardiner by repeatedly striking her on the head with an instrument to the
Prosecutor unknown or by other means to the Prosecutor unknown murdering
her. The final verdict delivered by the
jury in respect of this charge was guilty by majority of the lesser offence of
culpable homicide under deletion of the words 'repeatedly strike her on the
head with an instrument to the prosecutor unknown', deletion of the word
'other' and substitution of the word 'kill' for the word 'murder'.
This was contrary to the position
presented by the Crown which was to the effect that the appellant had indeed
struck his wife repeatedly with some unknown blunt instrument. By its verdict the jury indicated that it had
rejected the Crown position.
In his address to the jury, the
Advocate Depute adopted what can only be described as a back up position. This was to the effect that if the jury
accepted the account of the pannel to the effect that his wife had made some
form of lunge at him and in steering her past him the pannel had pushed her
towards an open door as a result of which she fell down stairs fracturing her
skull and causing her death, this was a form of assault and the death was
culpable. The jury was not entitled to
bring back a verdict of culpable homicide based on this proposition as there
was insufficient evidence to indicate the necessary mens rea on the part of the appellant.
Furthermore, the jury by its verdict
deleted the whole specification of the charge libelled. Against the background of the evidence in
this case, the jury was not entitled to return a verdict of culpable homicide
in the above terms.
2. The
directions given by the learned Judge at p70 to p71 of his charge
were misconceived. Against the background of the evidence, the
learned Judge ought not to have directed the jury in these terms. He may have inadvertently pointed the jury in
the direction of a verdict which was not open to it.
3. The
trial judge erred in failing to direct the jury that if it rejected the
explanation advanced by the Crown as
to the means by which Margaret June Gardiner died, then it was bound to acquit
the accused.
4. The
trial judge ought to have directed the jury that if it accepted the
evidence given by the accused or if
it raised a reasonable doubt it was obliged to acquit Reference is made to page
6."
[15] In essence he
argued that upon the version advanced by the appellant in each of the statements
and in the witness box, the admissions so far as they went did not disclose any
unlawful act which would render the subsequent death capable of being
categorised as culpable homicide. The
proper construction of the version advanced on behalf of the appellant was that
the death was accidental and that there was certainly no evil intent on the
part of the appellant which would warrant the jury determining that an assault
had taken place. He submitted that it was
plain the jury had rejected the Crown's principal position and were advancing
their position solely upon the evidence of the appellant. The fact that there was admitted physical
contact on any of the versions advanced by the appellant did not categorise
such contact as an assault, more to be likened to an accidental collision
between persons in a street or, as Mr. Findlay put it, at an airport busy with
people. While he did not go so far as to
categorise the jury's verdict as perverse, essentially he submitted that no
reasonable jury should have concluded that an assault had taken place on the
versions of events put forward by the appellant, however they were
scrutinised. Again Mr. Findlay did not
go so far as to suggest that the jury could not bring in a verdict of culpable
homicide on a version of events that was never libelled. However, in effect, his submission was they
were not entitled to categorise the conduct of the appellant on his own
admissions as amounting to an assault in law on his wife, albeit with no
intention to kill. In any event it was
submitted that assuming it could be categorised as an assault on the
appellant's own version there was no corroboration of any evil intent on his
behalf.