APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
OPINION OF THE COURT
delivered by LORD SUTHERLAND
NOTE OF APPEAL
ROBERT CARRUTHERS MITCHELL
HER MAJESTY'S ADVOCATE
Respondent: G.C. Bell, Q.C., A.D.; Crown Agent
14 December 1999
The appellant was convicted of murder and sentenced to life imprisonment with a recommendation that he should serve a minimum period of 15 years. He now appeals both against conviction and against the recommendation.
The circumstances of the offence were that the deceased who was 59 years of age was an agent for a personal finance company. He received a message to call at an address which was the home of the appellant's co-accused. When the deceased called at the house both the appellant and the co-accused were there, having been on a drinking spree which had lasted for some days. The deceased was seen to enter the house about 2.30 p.m. and was never seen alive again. The appellant and the co-accused were seen to leave the house together about 3.00 p.m. and make off in the deceased's car. During the intervening period screaming and cries for help had been heard coming from the house. The case was presented against the co-accused as being the principal actor and against the appellant on an art and part basis. The co-accused did not give evidence but the appellant did. The appellant's account of events was that he punched the deceased twice at an early stage in the events and then only in self-defence. He explained that he then called for help and the co-accused came over and put his foot on the deceased's chest. They managed to stop the deceased attacking the appellant but because he was still shouting and struggling they decided to tie him up. They did so with adhesive tape and put a duvet cover over his head. They then decided to put him in a wall cupboard in the bedroom until he calmed down. The appellant's evidence was that after doing this he left the co-accused in the bedroom with the deceased and returned to the living room. When he went back into the bedroom the co-accused was still there and the cupboard door was open. As he was standing in front of the cupboard the deceased slumped out of it on to the appellant's right foot. By that time there was blood on the deceased's head. The appellant lifted the deceased back into the cupboard and then he and the co-accused put a bed against the cupboard door to keep it shut. They then left the house taking the deceased's car with them.
The evidence of the pathologist was to the effect that the deceased was brutally and systematically assaulted by being punched, kicked and stamped on, the latter causing fractures of 13 ribs. Stamping may also have been the cause of severe injury to the deceased's chin and neck. In addition the deceased was comprehensively bound with heavy duty adhesive tape which was placed round his head, over his mouth and nose, round his wrists and at various levels around his legs. These injuries were likely to have been inflicted before the final stage of the attack. The final stage was that the deceased was repeatedly beaten over the head with some sort of weapon and was found to have sustained 10 lacerations of the scalp which had bled profusely. A metal lever which was thought to have been the weapon used was subsequently found in the boot of the deceased's car.
Grounds of appeal were lodged by the appellant's former solicitors. The appellant subsequently dismissed these solicitors and lodged a further ground of appeal of his own. Initially before this Court the appellant was represented by a solicitor advocate but it became clear that the appellant wished to advance his own appeal. This was particularly in relation to the ground of appeal which he had lodged himself. It was suggested to him that the legal issues raised in the grounds of appeal lodged by his former solicitors could be dealt with by the solicitor advocate, whereas he himself could deal on his own with his own ground of appeal if he so wished. This suggestion was however rejected by the appellant who maintained that he wished to conduct his own appeal. The case was subsequently put out to enable the appellant to reconsider this decision, but he insisted that he wished to conduct the appeal himself without any further assistance. He thereafter presented the arguments with which we deal below. Transcripts of some of the evidence had previously been requested, but they were not available at the hearing. The case was accordingly continued in order that the appellant should have the opportunity of seeing these transcripts and to enable him to make any further submissions and to enable him to seek legal representation if he so wished. Subsequently the appellant in correspondence and before this court at a hearing on his application for interim liberation made it clear that he wished the case to be decided on the basis if the arguments which he had presented. This we now do.
The grounds of appeal lodged by the appellant's former solicitors were formally adopted by the appellant although he made no further submissions in respect of them. The first of these grounds is that there was insufficient evidence that the appellant was present and participated in the fatal assault in the bedroom. There was no evidence that the appellant was in the bedroom at the time that that part of the assault was carried out, or that he knew of the co-accused's possession of the lever. Accordingly there was no evidence that when the appellant punched the deceased at the start of the incident, he was participating in an attack which he had reason to think would be fatal. The trial judge in his report points out that the appellant on his own account was present during a substantial number of the events which took place. In particular he was the first person to use any violence towards the deceased and was present when the co-accused "put his foot on the deceased's chest" as the appellant put it, or as the pathologist would have it, stamped on the deceased to a far greater extent than the appellant was prepared to admit. The appellant took part in tying up the deceased with the tape and taking him to the bedroom. The appellant took part in putting the deceased into the bedroom cupboard and, according to his own evidence again, again put the deceased back into the cupboard after the fatal assault had been inflicted. The trial judge also refers to an important piece of evidence by the pathologist which was to the effect that there were spots of blood found on the appellant's right shoe which must have travelled through the air rather than have been caused by direct contact. This would suggest, as the Crown submitted to the jury, that the appellant was present in the bedroom when the co-accused attacked the deceased with the metal lever. In our opinion the jury were entitled to have regard particularly to the evidence of the spots of blood and in so doing come to the view that the appellant was, contrary to his own evidence, present throughout the assault. Furthermore the appellant was taking part in the assault at various stages right up until the end. On the whole matter, therefore, we are satisfied that the jury were entitled on the evidence before them to draw the inference that the appellant was indeed acting art and part in this brutal assault on the deceased and that he must take the consequences for what was done by his co-accused.
Reference was made in the ground of appeal to the case of Codona v Her Majesty's Advocate 1996 S.C.C.R. 300 but in our view that case does not assist the appellant. The appellant in Codona only took part to a very minor extent at the very beginning of an assault which, at the stage at which she was participating, gave no signs of becoming a murderous assault. The situation in the present case however is very different and accordingly the case of Codona can easily be distinguished on its facts.
The second ground of appeal was that the jury's verdict was one which no reasonable jury could have returned. It was said that no reasonable jury would have convicted the appellant of murder in the light of his evidence that he had only punched the deceased twice at the outset of the incident. The absence of evidence of any further physical contact between the deceased and the appellant, the extent of the co-accused's clothing being contaminated with the deceased's blood, the presence of the co-accused's bloodstained fingerprint on the bedroom cupboard door and the evidence that the co-accused had said to the police when he was apprehended that the appellant had not been involved in the crime of murder. All of these matters no doubt satisfied the jury that the co-accused was the principal actor and of course he was also convicted of this murder. Nevertheless these factors do not detract from the fact that, on the evidence to which we have referred, the jury were entitled to reach the view that the appellant was present throughout the whole of these activities and was taking an active part in at least some of them. Accordingly we see no substance in this ground of appeal.
The third ground was that the trial judge misdirected the jury when he withdrew from their consideration the possibility of returning a verdict of culpable homicide. The trial judge tells us that the possibility of a verdict of culpable homicide was not put in issue by the Crown or by either of the defence counsel. The infliction of such horrendous injuries could only amount to utter and wicked recklessness on the part of the assailant. It was emphasised to the jury by the trial judge that they could only convict the present appellant if they were satisfied that he was acting art and part in the infliction of these injuries and if they were not so satisfied then their verdict would be one of acquittal. We consider that the trial judge was entirely correct in his approach to this matter and that this case is not to be seen in the same light as the case of Codona supra or Brown v Her Majesty's Advocate 1993 S.C.C.R. 382 where there was only a single stab wound inflicted by one or other of the accused.
The ground of appeal lodged by the appellant himself and to which he presented argument before this Court was that there was professional misconduct by his counsel. He said that defence counsel did not act as directed and deliberately omitted to bring out what was said to be corroborating evidence for the defence. We were not told what this corroborating evidence was. It was then said that counsel did not question vital issues such as blood on the shoes and jacket. The appellant said that counsel asked the expert witnesses about how the blood spots came to be in position but there was no evidence that it was the deceased's blood. The trial judge however tells us that bloodstains on the appellant's shoes and jacket were tested and that it was overwhelmingly likely that these stains were blood from the deceased. It is true that the small spots were not tested individually, but quite obviously when there is a substantial quantity of blood from the deceased, it is most likely that these spots came from the same source. At least that would be a matter which the jury would be entitled to infer. The appellant then said that he directed counsel to mention the judicial examination when the appellant had said he was attacked by the deceased. This, in our view, is immaterial because there was evidence of a police interview with the appellant where he said he had been attacked by the deceased and of course he gave evidence to that effect. The judicial examination therefore in our view would add nothing to the defence case. On this aspect of the case therefore we are satisfied that there are quite insufficient grounds for suggesting that counsel failed properly to put the appellant's case before the jury. The appellant's case was a straightforward one, namely that he had only been physically involved with the deceased at a very early stage and that all of the rest of the injuries were inflicted by the co-accused. The matter for the jury to consider was whether on the evidence the appellant was acting art and part along with the co-accused and the appellant's own evidence was the principal evidence in his favour on that matter. Quite plainly, of course, the jury cannot have accepted the appellant's account of events as otherwise, in accordance with the judge's directions, they would have acquitted.
On the whole matter therefore we are quite satisfied that no valid ground has been made out as to why this conviction should not stand. We shall accordingly refuse the appeal against conviction.