APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 749/98
Lord Justice Clerk
OPINION OF THE COURT
delivered by LORD McCLUSKEY
APPEAL AGAINST CONVICTION
ROBERT JACKSON RODGER
HER MAJESTY'S ADVOCATE
Appellant: M.E. Scott; Balfour & Manson
Respondent: C. MacNeill, A.D.; Crown Agent
16 November 1999
The appellant appeared in the High Court sitting in Dunfermline in November 1998 to face an indictment containing six charges. On the same indictment and facing the same charges was his co-accused, Stanley James Thomson. The charges all related to criminal activities carried out on the same day, 13 July 1998, in Newport-on-Tay. Charge (1) was a charge that the two accused stole a handbag and its contents in 4 Tay Street. Charge (2) was a charge of breaking into the premises of the Newport Tennis Club and there stealing a hammer and other items. Charge (3) was a charge of forcing open a motor car with intent to steal. Charge (4) was of attempting to force open a different motor car with intent to steal therefrom. Charge (5) alleged that both accused:
"did break into the house known as Victoria Cottage, at 19 Queen Street, Newport-on-Tay and there did steal four watches, a cigarette lighter, a bag and contents, a bottle containing a quantity of money, a roll of tape, a top with hanger, a purse containing a quantity of money and three bottles of aftershave, a box of perfume, a hairdryer and a set of cuff links and a tiepin."
Charge (6) was in the following terms:
"(6) on 13 July 1998 within the house known as Victoria Cottage at 19 Queen Street, Newport-on-Tay, you Robert Jackson Rodger and Stanley James Thomson (also known as Stanley James Clare) did assault Kathleen Connor Burke or Peter, aged 48 years, residing there and repeatedly strike her on the head with a hammer and murder her."
After trial the appellant was convicted unanimously on all the charges, subject to minor and, for present purposes, immaterial deletions from charges (2) and (5). Stanley James Thomson, the co-accused, was also convicted on the first five charges, but the jury by a majority verdict found charge (6) against him not proven.
It is convenient to incorporate a passage from the report provided by the trial judge to this court in response to the lodging of the appeal. It is in the following terms:
"The first five charges related to incidents on the same date, all in Newport-on-Tay, and included the theft of a hammer from a tennis club, it being the Crown contention that the hammer used in the murder was that hammer. The other offences involved breaking into houses, breaking into a car and attempting to break into a car, all with intent to steal. It was not in dispute that the circumstances of the killing of Mrs Peter were quite horrific, she being attacked in her own house in circumstances which led me to make a 15 year recommendation following the conviction of the appellant for the murder. However, the precise details regarding the murder and the Crown evidence in support of it are not raised in issue by the grounds of appeal now lodged. As is pointed out in the grounds of appeal, each of the two accused blamed the other for the murder. The Crown position was that the appellant committed the murder and that the co-accused was guilty of the murder on an art and part basis. The Crown position was wholly understandable on the evidence led, there being very ample sufficiency of evidence against the appellant that he was personally responsible for the attack on Mrs Peter. This evidence included a voluntary admission of guilt to the police (which the appellant disputed at his trial), forensic evidence about bloodstaining on the respective clothing of each accused and evidence of the murder being by a right-handed man such as the appellant rather than a left-handed man such as the co-accused. The appellant in evidence suggested that his co-accused had committed the murder. While Mr Prais, for the appellant, properly took any point available on behalf of the appellant during the leading of evidence and in submissions to the jury, the evidence against the appellant of being the principal in the murder was so overwhelming both in quantity and quality that it became clear that the real issue in the case related to the co-accused, namely whether he was guilty of art and part involvement in the murder. As the Crown case did not involve the suggestion that the co-accused had committed the murder and that the appellant was guilty of involvement in the murder only on an art and part basis, there was a heavy emphasis in the conduct of the case on the issue of whether the co-accused was guilty on an art and part basis or not. The appellant's position was short and simple. He had not made any admission of guilt to the police and, while he was in the house concerned and engaged on housebreaking, he played no part in the murder and indeed tried to get his co-accused away from Mrs Peter when his co-accused was attacking Mrs Peter. As is pointed out in the grounds of appeal, the co-accused did not give evidence and no evidence was led on his behalf at all."
The grounds of appeal, lodged on 28 January 1999, may be referred to for their full terms. The essence of the grounds, so far as still advanced, is to be found in the passages reading as follows:
"It is the appellant's contention that Lord Milligan failed properly to describe his (the appellant's) defence case on the murder when charging the jury, thereby giving rise to a miscarriage of justice. It was accepted by both accused that the deceased was murdered (by being struck repeatedly with a hammer) during the course of a housebreaking. There was no dispute that this was a case of murder or that both accused were guilty of the housebreaking. Each accused served notice upon the other in terms of section 78 of the Criminal Procedure (Scotland) Act 1995. The Crown position was that both accused were guilty of murder, the appellant as actor, the co-accused art and part. The appellant gave evidence consistent with his section 78 notice. The co-accused maintained his silence...Turning to the Judge's charge, Lord Milligan deals with the appellant's case at pages 25-26. In doing so he says nothing about the appellant's laying the blame on his co-accused in his evidence from the witness box. At page 26A-B, Lord Milligan summarises the appellant's position as a challenge to the Crown's ability to satisfy the beyond a reasonable doubt test but says nothing about his positive assertion of the co-accused's guilt...The jury sought further directions on concert. In response, Lord Milligan stated at page 40B-C: '...I don't understand there to be any suggestion of the hammer having changed hands or there being any suggestion that the second accused actually took any active part in the attack...' That was a statement which ignored the appellant's position throughout his trial."
The grounds of appeal, as lodged, contained a further criticism to the effect that the trial judge should have directed the jury that they could acquit the appellant of the murder but at the same time convict the co-accused of the murder. That assertion, which is plainly wrong, was abandoned by counsel, Miss Scott, at the start of the hearing of the appeal. The only question which arises in this appeal, therefore, is whether or not the trial judge fairly presented the case to the jury and, in particular, failed to do so by not adequately balancing his account of the evidence founded upon by the Crown with an account of the evidence adduced in support of the defence case, being principally the evidence given by the appellant himself, and certain other adminicles of real evidence.
In order to assess the judge's charge to the jury in the light of this we should begin by reiterating what has been said repeatedly in this court: that the charge must be considered as a whole. To assist the court in performing that task Miss Scott took the court through the whole charge and drew attention to what the judge said on each matter. It is unnecessary to rehearse here what the trial judge said in relation to the respective roles of judge and jury, the general approach to evidence, the burden and standard of proof, corroboration and other matters of a general character. There was no criticism of these general directions. Nor, it should be noted, was there any criticism made of the judge's directions to the jury in relation to their treatment of the contents of the alleged voluntary statement. No objection had been taken to the admissibility of the contents of that statement and the judge gave the jury appropriate warnings of their approach to treating that as evidence pointing to the appellant's guilt. However, dealing with the approach to the evidence, the trial judge said (page 6D):
"Now, here the evidence against the first accused (the appellant), and I am talking now about charge 6, is circumstantial and this includes, if you accept it, evidence of statements allegedly made by him, if you accept these as admissible and reliable and tending to support the Crown case in some way or other. The case against the second accused is the evidence of the first accused who gave evidence, and circumstantial evidence." (emphasis added).
He then referred to the accused's evidence in the context of corroboration and, having dealt with that, added:
"Although, I think it is right immediately to add that I think the first accused's own evidence did not incriminate him in the murder of Mrs. Peter."
He then referred in terms to the fact that the statement given by the accused might be used as evidence and said:
"Where the Crown lead evidence, or where evidence is led by the defence without objection from the Crown, of a statement made by an accused person prior to the trial, which is capable of being incriminatory and exculpatory, the whole statement is admissible as evidence of the facts contained in the statement."
He elaborated upon the jury's approach to the voluntary statement allegedly made and in that context again referred to the first accused's own evidence as given in court. He described that evidence as clearly challenging the evidence of the police officers about the conduct of the interview when the voluntary statement was given. He then dealt with defence evidence by saying
"Next I have to direct you about defence evidence. There is no obligation on the accused to give evidence. As I have stated already, there is no onus of proof on him and the position is no different where two accused blame each other for doing something. The onus is on the Crown to prove the case against one or other or both and its no different to the position where neither accused blames the other...Defence evidence falls to be considered along with the rest of the evidence which has been led and is available for your consideration...If you believe the evidence of the accused and on that evidence believe that he is innocent you must acquit him. His evidence of innocence does not require to be corroborated. Even if you do not wholly believe that evidence, if any part of it creates and leaves in your minds, when you have considered the whole evidence, a reasonable doubt as to his guilt, you must acquit him."
The trial judge then turned to other matters, including the definition of the crime of murder. He drew attention to the fact that the Crown case was that the appellant had struck Mrs. Peter and that the co-accused was guilty only on an "art and part" basis, which he then explained, under reference to concert. The trial judge then dealt with certain matters which were not in dispute and turned to the important question as to who it was who committed the murder. He summarised briefly what the Crown were asserting, namely that the accused personally wielded the hammer. In that context he mentioned that the Advocate Depute had referred to the evidence of a witness, Kieran Clifford, who claimed to have heard the appellant acknowledge that he had possession of the hammer at an earlier stage. Reference was also made to the bloodstaining on the clothing of the appellant and on the clothing of the co-accused and to the fact that the blood on the appellant's jacket was substantially more than that on the jacket of the second accused. The alleged voluntary statement was again referred to briefly. The trial judge then stated that the evidence founded upon by the Crown was "sufficient (in law) evidence for the conviction of the first accused for murder." Next he turned to the case for the appellant in the light of the directions that he had given to the jury about onus and said:
"...in this connection, you must consider carefully all that was said by Mr. Prais on behalf of the first accused yesterday. Amongst the points made by him were I think that there was no doubt that there were two people in Mrs. Peter's house when she died, the two accused; and he raised the question, 'Was she killed by both or by one?'. And he said that he didn't think there was any evidence to suggest that they both wielded a hammer at Mrs. Peter. Indeed, Mr. Prais said, you must choose between the first accused and the second accused. He said if you believed Kieran Clifford [the witness referred to above], both knew about the hammer; there was blood on the clothing of both the accused and the second accused was collecting money in the garden when the police arrived and only started shovelling blame elsewhere when the body was mentioned. The second accused's fingerprints were on the whisky bottle and the green bag, and you must consider the first accused's evidence about the voluntary statement carefully; and, in any event, the first accused had referred to a screwdriver, and the assailant must have known he was using a hammer; and the second accused had referred to a claw hammer, and he submitted that you can't be absolutely sure on the evidence that it was the first accused who attacked Mrs. Peter with the hammer."
The trial judge then turned to "the Crown case against the second accused in charge 6." In that context reference was made to the green bag, which was a Marks & Spencer green bag thrown out of the window of the cottage and having the co-accused's fingerprint on it. Reference was also made to the fingerprints on the whisky bottle, referred to earlier, which suggested that the second accused was, at some stage, in the bedroom where the murder was committed. The trial judge was very careful in dealing with the evidence to make it clear to the jury that the Crown were not founding upon evidence from the first accused to show that the second accused had wielded the hammer; and that the Crown's case was purely and simply that the second accused was guilty because he was acting in concert with the first accused as the person who wielded the hammer which struck Mrs. Peter the fatal blows. The trial judge explained to the jury that he had taken longer to consider the evidence and the rules relating to the case against the second accused because, having regard to the need to understand and apply the concept of concert, "that is simply because the Crown's case against the first accused is necessarily more straightforward than the art and part case against to the second accused."
Little more than an hour after they had retired to consider their verdicts the jury returned to court and the foreman stated, "We need further clarification on the law on the aspects of arts and parts in concert, from yourself." The trial judge then addressed the law of concert in more detail. His directions commence at page 37 and include the passage quoted in the grounds of appeal at page 40B-C. In that context he stated (starting at page 39F):
"There is another way in which concert may arise on the spur of the moment and that is where someone suddenly joins in something that has started and in that sort of situation concert may arise on the spur of the moment. But I don't think there can be any question of that in this case - in fact there can't, and I so direct you, because the Crown case is that there was an attack by one person only with the hammer and that person is the first accused, and I don't understand there to be any suggestion of the hammer having changed hands or there to be any suggestion that the second accused actually took any active part on the assault on Mrs. Peter."
It is important to note that there was no evidence at all in the case that the hammer changed hands in the context of some concerted assault. The appellant, in particular, gave no evidence to that effect. It was plain that in dealing with the Crown case of concert, the evidence of the appellant to the effect that the co-accused had alone carried out a hammer attack while he, the appellant, was not present, was not evidence which the Crown relied upon or evidence which supported any case of concert.
We have quoted some of the main passages from the judge's charge to the jury. We consider that it is abundantly clear from these passages that the trial judge presented the matter fairly and fully to the jury. None of the evidence was referred to in great detail. The trial judge merely referred to the evidence in a summary form. He referred in particular to the evidence of the appellant by summarising the submission made by Mr. Prais, Q.C. on behalf of the appellant, in addressing the jury. It is important also to bear in mind that the appellant was the last witness to give evidence and that he gave evidence spread over a period of two days immediately before the Advocate Depute addressed the jury. In our view there is no justification for criticising the trial judge for not rehearsing the appellant's evidence in detail. That evidence must have been clearly and prominently in the forefront of the jury's mind. The jury must have had that important and most recent evidence very clearly in mind as they considered all the evidence; for it was the only evidence given in court by anyone claiming to have been at the scene when the fatal assault was committed. The fact that the appellant gave evidence and that that evidence pointed to his own innocence of the attack on Mrs. Peter and to the co-accused's sole guilt of that attack would certainly have been absolutely clear to the jury. It is not the task of the trial judge in a criminal jury trial in Scotland to patronise the jury by taking them through the evidence which they have just heard, line by line, detail by detail and point by point.
We are satisfied that the trial judge properly described the defence case in relation to the murder and properly referred, when the context required it, to the main thrust of that evidence. He had no duty, as counsel for the appellant has now acknowledged, to tell the jury that the co-accused might be convicted on the evidence of the appellant (this being the point in the original grounds of appeal that has now been withdrawn). We are satisfied that the sole ground of appeal now advanced is not sustainable. The appeal is, therefore, refused.