Lord Justice Clerk
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD ABERNETHY
NOTE OF APPEAL AGAINST CONVICTION
KABASELE GEORGE KABALU
HER MAJESTY'S ADVOCATE
Appellant: Jackson, Q.C., Anderson Strathearn
Respondent: Bell, Q.C., A.D.; Crown Agent
10 March 1999
On 24 December 1997 in the High Court at Edinburgh the appellant, together with three co-accused, was convicted of murdering Derek Neil Sweet, of 38 East Leven Street, Burntisland, by knocking him to the ground, repeatedly punching, kicking and stamping on his head and body and repeatedly striking his head against the ground. Two other co-accused, who had faced the same charge, were convicted of assault only. The appellant sought, and was granted, leave to appeal against conviction on the following grounds:
"1. There has been a miscarriage of justice in that the Appellant was convicted and could only have been convicted of murder on the basis that he was acting in concert with the other accused.
There was insufficient evidence to entitle the Jury to reach the conclusion that the Appellant was so acting in concert.
In particular the evidence demonstrated that the Appellant arrived at the
locus and assaulted the deceased after the concerted attack had been completed.
Accordingly the trial Judge erred in not directing the Jury that the Appellant could only be convicted of assault at most".
In his report the trial judge tells us that the six accused were among a party of young people who came from Kirkcaldy to Burntisland on the evening of 8 August 1997 to hear a Kirkcaldy Band which was to play in the Ex-Serviceman's Club on High Street, Burntisland. Also present at the Club were a number of regular attenders, including Derek Sweet, the deceased, who at that time was 26 years old. At about 11 p.m. there was an incident in the Club which involved one of the co-accused, Terry Collins, and Sweet. The precise events giving rise to this incident were the subject of conflicting evidence but it was clear that ultimately Sweet hit Terry Collins in the upper face with an object resembling a bottle. This caused some bleeding on Collins' face and the staff at the Club required to clean it up and apply sticking plaster.
At first Collins seemed reasonably calm in response to his injury. However, a number of people, who appeared to belong to the Kirkcaldy party, gathered around Collins and seemed to urge him not to let Sweet "get away with it". Some of the Kirkcaldy party were put out of the Club and they congregated at the front door. The Club staff thought that their presence was threatening to Sweet. Terry Collins himself indicated that it was his intention to attack Sweet. Indeed, as he left the Club he said "We'll go and kill him". As a result of the somewhat menacing situation the staff decided that Sweet should leave the Club by a side door rather than by the main door. However, his departure was seen by some girls in the Kirkcaldy party and they ran to the main door alerting the crowd there to the fact that he had left the Club, and urging others not to let him escape. They shouted to others "Go and get the bastard". A number of youths thereafter set out in pursuit of Sweet and they did this by running along High Street towards Lothian Street, presumably hoping to cut him off. In the front of this group were the co-accused O'Donnell, Keir and Stuart Collins, the younger brother of Terry Collins. Terry Collins himself either formed part of the leading group or was not far behind them. When the pursuing group reached Lothian Street they turned right into it and ran up towards its junction with East Broomhill Road.
When that junction was reached they encountered Sweet and his friend Rademacher, who were proceeding away from the Club. O'Donnell and Keir then attacked Sweet and Keir knocked him to the ground with a punch. Thereafter they kicked Sweet, although it was not proved that either O'Donnell or Keir kicked him on the head or indeed repeatedly. Rademacher was unable to intervene to help his friend. Stuart Collins kicked Sweet repeatedly and in his case he kicked him on the head. Terry Collins arrived shortly after the initial attack began. He accepted that he sat astride Sweet and that he struck him twice with the flat of his hand. However, the pattern of blood on his shoes and trousers provided support for the evidence of witnesses who said that they saw him kick the deceased on the head. It was also to be noted that he was a trained and experienced Marine and was involved in boxing. It may therefore be assumed that he was a strong man. Moreover, as he attacked Sweet he said "I am the bastard you bottled". He clearly was there at an active part of the attack since he accepted that as he was holding Sweet's head someone kicked it out of his hand. A further number of persons came to the scene of the assault (including some young women) and it is clear that some of the other males joined in the assault. The co-accused Alexander Watson was one of those who joined in the assault and there was forensic evidence in regard to blood and hair on his shoes from which it could be deduced that he kicked Sweet on the head. There was also a print of Stuart Collins' shoe on Sweet's head, which would confirm that he stamped on it. He also had Sweet's blood on his clothes and shoes.
In relation to the present appellant the trial judge reports that he joined the pursuit some short time after it began, and climbed into an enclosure on High Street before proceeding up Lothian Street and arriving at the locus of the incident. He was accompanied by two girls. He had come to Kirkcaldy separately from the others and indeed had come with Keir. When he arrived at the locus of the incident, the assault on Sweet was near its end. Nevertheless, the judge reports, the appellant seemed determined to join in and he kicked or stamped Sweet on the head. He also had what appeared to be the victim's blood on his shoe. Before he attacked Sweet he confronted him and noticed that he was inert and groaning. This did not prevent him kicking the victim. Indeed the appellant had to be pulled away from the victim by others.
After the incident stopped the victim was found, by those who came to the scene, to be unconscious and in a very distressed state, with severe injuries to his head and face. An ambulance was summoned but he died from his injuries on his way to hospital. The fatal attack began about 11.15 p.m. The ambulance arrived about 11.38 p.m. He was certified dead at about 12.03 a.m.
The pathological evidence was that Sweet was killed by repeated blows to the head. It is unlikely that any single blow killed him. On the other hand the blows were delivered with substantial force, and the fact that the head was at one time unprotected meant that rapid to and fro motions of the head would have resulted. This was said by the pathologists to have caused diffuse anoxic injury to the brain. The bruises were consistent with stamping as well as kicking. Whereas no individual blow caused death, the multiple blows received on the head had in cumulo occasioned the mortal injury.
With regard to the grounds of appeal the trial judge says that he agrees that the appellant could only be guilty of murder if he had been acting in concert with other accused. Indeed he points out that he directed the jury that they could only find the appellant guilty of a crime involving the homicide if they were satisfied that he was acting in concert with the other assailants. Thus the issue in the appeal is whether there was adequate evidence to justify the conclusion (which the jury must have arrived at) that the appellant was acting in concert in respect of the homicidal attack. The trial judge then goes on to say that there are really three stages which have to be considered. The first is the propagation of a scheme to attack the deceased when the appellant and others were in or about the Club. Secondly, there are the actions of the appellant before he arrived at the locus of the homicidal assault. Thirdly, there are his actions at the point when he joined in the assault.
There was no direct evidence that the appellant had directly participated in the formulation within the Club of any plan to assault Sweet. On the other hand there was evidence from which a jury could have concluded that the appellant must have known that the youths setting off from the Club in pursuit of him were intending to settle what they regarded as a score with Sweet and to assault him. The trial judge then goes on to tell us in more detail what this evidence consisted of but there is no need to repeat that here as it was accepted by Mr. Jackson, senior counsel for the appellant, that there was sufficient evidence to entitle the jury to hold that the appellant was a participant in a concerted plan to exact revenge upon Sweet.
With regard to the second and third stages mentioned by the trial judge he reports that there was no evidence that the appellant was among the first group of youths to leave the vicinity of the Club and pursue Sweet. However, there was evidence that he followed quite close on their heels. The witness Andrea Philp was one of the Kirkcaldy visitors and she deponed that she had seen some youths run from the Club (in the direction that would lead to where the deceased was intercepted). She assumed that they were running after "the guy". Then she saw the appellant running in the same direction and she and a girl named Lynette Rennie followed him. The appellant climbed over a substantial fence to enter a locked post office compound and then returned. When he climbed out of the compound he, and the two girls, continued running to the point where the assault was taking place. Andrea Philp said that, when they arrived there, Terry Collins was sitting over Sweet. He was punching him hard until someone grabbed him and pulled him away. She also saw Stuart Collins kick the man once or twice. The trial judge then reports that she also saw the accused Watson kicking Sweet, and he goes on to say that it might have been surprising if the appellant had not seen the same thing. In any event the appellant went over to Sweet and kicked him once or twice at the side of the face. At that point the victim was motionless. The appellant had to be pulled off him.
The judge reports that Lynette Rennie also gave evidence. She confirmed that she had seen the appellant run up the street and that she had followed him. The judge reports that it has to be observed that this witness was seriously drunk at the time of the incident. However, she confirmed that the appellant had climbed into the compound and then continued running when he came out. When she arrived at the locus people were kicking Sweet. She heard Andrea Philp shouting "That's enough". However, as she deponed, "I was really drunk" and she cannot remember what had happened to the appellant at that stage.
A further witness, Robert McGinnies, at the time of the incident was driving his car in Burntisland. As he neared the locus of the incident he saw a coloured man running towards it. Some girls were running behind him. As he passed the locus he saw six or seven youths kicking and stamping on a figure who was prone on the ground. Then he saw the coloured man arrive (the appellant is coloured and is the only coloured man referred to in relation to this incident), although as he passed he did not see him attack the victim
On 9 August 1997 Detective Constable Michael Teevan charged the appellant with murder. In answer the appellant said that he had not told the whole truth in the statement he had previously given because of concern for his grandmother who had recently been in hospital. He admitted that at the time of the incident he had walked up to the victim and said "Are ye a' right, mate?". The victim groaned so he kicked him and walked away. He claimed that he regretted his action and that he had not wanted to kill anyone. The shoes of the appellant were examined by forensic experts. There were large bloodstains found on the right shoe. There was forensic evidence to the effect that this staining was consistent with repeated contact or prolonged contact between the shoe and the victim's head; the blood on the shoe was likely to have come from the deceased.
In opening his submissions to us Mr. Jackson reminded us that of the six accused who had been charged with the murder four had been convicted of murder while the other two had been convicted only of assault. He explained that this appeal was to do with whether there was sufficient evidence of concert on the part of the appellant to justify his conviction for murder. There was no question but that he should be convicted for assault. Mr. Jackson submitted that the appellant arrived at the locus and assaulted the deceased after the murderous concerted attack on him had been completed. He made it clear that the primary facts had never been disputed: the six accused had been in the Club in Burntisland, there was a nasty incident there involving Terry Collins, and the jury were entitled to find that thereafter all the accused had acted in concert in embarking on a revenge attack for that. They ran along High Street, turned right into Lothian Street, ran up that street and turned right into East Broomhill Road where they met the deceased. Where they met him was just round the corner into East Broomhill Road. In the first wave were Stuart Collins, O'Donnell and Keir. They confronted the deceased and his companion. O'Donnell and Keir then assaulted the deceased and knocked him to the ground. O'Donnell also kicked him, but not to the head. There was no dispute about this. (Mr. Jackson acted for O'Donnell at the trial.) Stuart Collins then joined in and he began to kick the deceased in a much more violent and dangerous manner and to the head. At that point O'Donnell and Keir withdrew and took no further part. The argument that had been put forward for them at the trial was that they were guilty of assault but not of murderous violence and that they withdrew when that violence commenced. The fact that the jury convicted these two of assault only showed that they recognised that it was possible for an accused to have acted in concert in the chase and in an assault without necessarily being involved in a concerted murderous attack. Next on the scene, said Mr. Jackson, was Terry Collins and he joined in with his younger brother in very violent kicking of the deceased. It was that movement back and forth of the deceased's head which killed him according to the medical evidence. During that stage Alexander Watson must have joined in. There was little evidence as to what he was seen doing but he was convicted on the basis of forensic evidence. There was bloodstaining on his trousers and his shoes. The present appellant left the Club last of the accused. He ran along High Street with the two women who have been mentioned. He climbed into the post office compound and then back out again. He ran to the corner of High Street and Lothian Street and then up Lothian Street, which is uphill and bends to the right. He came to the junction with East Broomhill Road and there came upon the scene of the attack. On any view he arrived at the tail end of the attack. Shortly after the appellant and the two women arrived at the scene Terry Collins was pulled away from attacking the deceased. This was not the violent kicking mentioned earlier. That had ceased by this time. At this time Terry Collins was sitting astride the deceased and was seen to punch him once or twice in the face. Then, as people were moving away, the appellant went across and kicked the deceased once or twice on the head. So, said Mr. Jackson, the question became this. In committing that assault what did the appellant link himself in with in terms of concert? Were the jury entitled to link him in with the murderous attack? There was no suggestion, he added, that his kicks killed the deceased. Mr. Jackson submitted that when one looked at the evidence in detail, there was no basis for linking the appellant by means of the law of concert with the very serious violence in the middle of this attack. One had to examine what, if anything
Returning to the trial judge's report where his Lordship said that there were really three stages which had to be considered, Mr. Jackson submitted that it was only the third stage that mattered. As regards that third stage the trial judge had made a very serious mistake when he had said in his report that Andrea Philp also saw the accused Watson kicking Sweet. He was also in error when he said earlier in the report that the appellant, when he arrived at the scene, seemed determined to join in and kicked or stamped Sweet on the head. There was no evidence of any stamping by the appellant. Turning to the trial judge's charge, in so far as it concerned the appellant this started at page 83. Mr. Jackson referred us particularly to the passage at page 85E to 86. Having dealt with the evidence relating to the appellant's involvement in the earlier stages, his Lordship said this:
"The fact is, on one view of the evidence, when Kabalu arrived at the incident, notwithstanding that Mr. Sweet was on the ground, he approached him, saw that he was...(one word indistinct) and laid into him and kicked him. And some evidence suggested later he was pulled away. Does that evidence tell you anything about his purpose in going up the road? And if it does you will have to decide what you make of it. Was he acting as a member of the pursuing mob, albeit it got scattered? Or was he on some private venture of his own? Of course, if it was a private venture then he's only liable for what he did.
So once again you have to decide if he was responsible for the homicide and go on from there. If you do find he was responsible for the homicide, and only then, you consider whether your verdict is murder or culpable homicide".
Mr. Jackson submitted that in that passage the learned trial judge missed the point, that being not whether the appellant was acting in concert with the others in pursuing and attacking the deceased, but whether he was acting in concert with those who carried out the murderous attack on him. In other words was he in concert with those who were perpetrating murderous violence on the deceased? In that context, said Mr. Jackson, there was no doubt from the evidence that what killed the deceased was the kicking of his head back and forth like a football with tremendous violence.
In summary, therefore, Mr. Jackson's submission came to this. While the jury were entitled to find that the appellant was part of a concerted plan to attack the deceased and that he did assault the deceased by kicking him, the evidence was that he arrived at the locus and assaulted the deceased in that manner after the murderous attack had been completed. It did not show that he must have seen that murderous attack. Accordingly the kicks that he gave to the deceased could not be linked in with the earlier murderous attack which had been the cause of the deceased's death. The evidence was therefore not sufficient to entitle the jury to find the appellant guilty of murder or culpable homicide; there was only sufficient evidence to entitle them to find him guilty of assault.
In reply the Advocate depute submitted that there was ample evidence to entitle the jury to convict the appellant of murder. He accepted, however, that the trial judge's reference in his report to Andrea Philip saying that she saw the accused Watson kicking Sweet was a mistake and that there was no reference in Miss Philp's evidence to the accused Watson. He also accepted that it was obvious from the way the judge had charged the jury that there was concern about Rademacher's evidence which put the appellant among those who were kicking and stamping the deceased. And he also accepted that it was the violent kicking to and fro of the deceased's head which was the cause of his death. The Advocate depute submitted that McGinnies' evidence was important. He was in a car and was therefore moving relatively quickly. He described a serious and violent assault on the deceased. He also described the appellant running towards the scene of the incident and arriving there as he (McGinnies) turned to his left. So on that evidence the Advocate depute submitted that the jury were entitled to conclude that there was a murderous assault and that the appellant joined that assault a matter of seconds later, although he accepted that in between those two moments in time the original level of violence, according to McGinnies, had declined. The Advocate depute submitted that all the accused had left the Club with a common purpose. Someone had shouted "Kill him". Accordingly it could be said that there was a common murderous purpose. There was no evidence that the appellant heard those words but all the accused were there when they were shouted. From his later actions the jury could also infer that the appellant was looking for the deceased. Then there was the third stage as described by the trial judge. Andrea Philp pulled Terry Collins off the deceased and then pulled the appellant off. That was eloquent of what was happening at the time. The appellant was in front of Miss Philp and when she got there she saw Terry Collins holding the victim and punching him once or twice on the face. Then she saw Stuart Collins kick him on the left side of his body or, as she had earlier said in a police statement the truth of which she accepted, in the ribs. The Advocate depute also referred to the undisputed admission made by the appellant to the police, and the forensic evidence with regard to the bloodstains found on the appellant's right shoe, which was mentioned by the trial judge in his report. Summarising his submissions the Advocate depute said that there was here a determined effort by the appellant to chase after the deceased. He arrived at the scene within seconds of McGinnies witnessing a violent assault. He then joined in when the deceased was lying inert on the ground. From the totality of the evidence there was sufficient to entitle the jury to convict the appellant of murder.
This is an anxious case and on the evidence, at least in relation to murder, a narrow one in our view. It is convenient to set out first what is not in dispute. The jury were entitled to find that the appellant was part of a concerted group intent on assaulting the deceased. He arrived at the scene of the fatal attack after all his co-accused. After he arrived he saw Terry Collins punching the deceased on the face and Stuart Collins kicking him once or twice in the ribs. The appellant then assaulted the deceased by kicking him once or twice at the side of the face. However, all this was after the violent kicking of the deceased's head to and fro which was the cause of his death. The issue, therefore, is whether by assaulting the deceased in the way that he did the appellant can be said to have joined in or been part of the violent kicking which was the cause of the deceased's death. Any kick to the face is reprehensible enough but there is no suggestion that the kick or kicks delivered by the appellant were in themselves of such violence as to have been a cause of the deceased's death. So it comes to be that the only way in which the appellant can be said to have acted in concert with those who delivered the fatal violence to the deceased is if he saw them deliver that violence and having seen that, then delivered his own kicks. Only in that way can he be said to have been a part of the murderous attack on the deceased and therefore guilty of his murder. We are inclined to agree with Mr. Jackson that this narrow point is not perhaps as clearly focused in the trial judge's charge (at pages 85 to 86) as it might have been, but in a long and complex trial such as this was with a multiplicity of points and issues to be considered that is entirely understandable. Having said this, though, it is plain that the jury were aware of the distinction between those who joined in a general attack on the deceased and those who acted together in delivering such violence as to cause his death. That is clear from the verdicts of assault only that they returned in the cases of the co-accused O'Donnell and Keir.
In any event the question for us now is: what is the evidence that bears on the critical point of the appellant's involvement in a concerted attack of such violence as to cause the deceased's death? It comes only from the witnesses Andrea Philp and Robert McGinnies. In her evidence-in-chief Andrea Philp said that she was running up Lothian Street shortly behind the appellant. She was then asked (at page 15E):
"Did you see anything at all? - When we come to an opening.
What did you see when you came to the opening? - I seen Steven Keir standing at the bench.
You saw Steven Keir standing at the bench? - Uh-huh.
What else did you see? - And we got further on, round the corner a bit, and I noticed Terry Collins straddling with...over a guy...
Just straddling him. Now, what was Terry doing? - He had a grab of the person...top. I noticed he punched the guy in the face once or twice.
Did you see anything else happening at the time? - No.
Did you see any others in that opening? - Not at that particular time.
When you have arrived at the opening, who by now was with you at the opening as you arrived? - Kally (the appellant), myself and Lynette...
So, when you saw Terry positioned as you've said, punching this male, what did you do? - Somebody had grabbed Terry, to get him off, and I grabbed him as well, to take him off.
So, someone grabbed Terry. Now that first someone who grabbed Terry, do you know who that was? - I cannae think.
And then you also grabbed Terry? - Yes.
And did the two of you succeed in taking Terry away? - Yeah.
Well, when you say 'Yeah', are you hesitant about that? - I can't remember.
After you grabbed Terry what do you next remember happening? - Seeing Stuart Collins kick the guy at the side once or twice.
Sorry? - Once or twice.
Once or twice, so Stuart Collins kicked the guy at the side? - Yeah.
What else happened? - Everybody just started to leave.
And, then what? - I noticed Kally going back and seen him kick the guy once or twice at the side of the face".
Later in her evidence-in-chief she was asked about two statements to the same effect that she had made to the police prior to the trial. She confirmed the truth of these statements. In her cross-examination by counsel for the appellant she was asked (at page 61):
"When you turned round into (Lothian Street), when you start climbing the hill can you see anything? - No.
What's happening? - No.
Does the hill then slow you down further? - A wee bit.
And you continue on up the hill. When is the first time that you see anything happening? - I seen Steven first at the bench.
Where were you when you first saw the scene? - Just getting them to the...just at the opening".
McGinnies' evidence is in some ways a little more equivocal but essentially, we think, to the same effect. He was asked in his evidence-in-chief (at page 70):
"So you turned up right (into Lothian Street), you saw two girls at the corner and you saw a big coloured guy? - Yes.
Was he...where was the coloured boy? - He was just up fae the girl who was running up the wall, running up the inside of the wall".
He was then referred to the photographs which show the wall running along the right-hand side of Lothian Street and in particular he was shown photograph 16 and asked (at page 73):
"If we come to photograph 16, do you recognise this as the continuation of the road up the hill? - Yes.
With the wall still on the right-hand side, and then an opening? - Yes.
Is the fight in the opening or the right-hand side? - At the junction.
At the junction? - Yes".
He then described the attack which he saw taking place, which consisted of punching, stamping and kicking and he was asked (at page 73F):
"Now, at the stage that you are saying these six people or so punching, stomping and kicking, where was the coloured guy? - Half way down the dike where I said he was. He was just running up".
McGinnies then described how at about the same time that the punching, stamping and kicking was going on one of the group grabbed the deceased's head and forced it into the ground. And then he made his left turn out of Lothian Street and into the road opposite East Broomhill Road. At that time he said (at page 78):
"I looked over my shoulder and I still saw the boys kicking, but just as that, the coloured person arrived and, I never saw him kick at anybody.
Just at that the coloured boy arrived. You didn't see him kicking? - No, I got outside before that.
BY THE COURT: After you saw this person take the head of the lying figure and, you say, I think, banging it on the ground, did the fighting from the others stop or did it carry on? - It calmed down, like it wasnae as aggressively, just like no' as much stomping just like kicking and that...
FURTHER EXAMINED BY THE ADVOCATE DEPUTE: ...Are you indicating that even though things seemed to calm down, the people are gathered round, continued to kick? - Yes.
But not as aggressively? - No".
In cross-examination by counsel for the appellant McGinnies was asked (at page 86):
"Where were you when you first saw the coloured guy? - Just past the girls at the bottom about just at the start of the...
Whereabouts were you in the street when you first saw the fight taking place? - Just as...(few words indistinct) come in sight...
Would you look at Photograph 16, just turn that photograph over and, do you recognise that photograph? - Yes.
You turned left into the street we see in the left of the photograph, is that right? - Yes.
And the fight was taking place in the lane that we see to the right of the photograph? - Yes.
Can you tell us where you were in the street, driving up there, when you first saw the fight? - As soon as you come into focus really...(few words indistinct).
I think it was put to you that the fight took place further into the lane, is that right? - Yes".
He was then referred to Photograph 1 in Crown production number 104 and asked:
"It took place where the concrete end is, you said, is that right? - Yes.
Is that where the road surface ends? We can see something of the...something white? - Yes.
Is that roughly where it was taking place? - Yes.
So, you wouldn't see that happening until you were at the junction that you were turning left at? - Yes.
And then, you told us that as you looked back I think you saw a group of boys forming a half crescent round someone on the ground? - No, as we got to the junction I saw the half crescent.
And the boys were stomping, punching and kicking, is that right? - Yes.
And, someone had taken his head and forced it into the ground? - Yes.
And, that was all before the coloured guy arrived? - Yes".
The point that we are concerned with is plainly a very narrow one and it turns on events covering a very short time, perhaps just a few seconds. We, of course, did not have the benefit of seeing or hearing the evidence these witnesses gave, and can only proceed on the transcript. But in the circumstances we do not think that is a disadvantage. On the contrary, we have been able to concentrate on this one narrow point in a way that was hardly possible in the immediacy and complexity of the trial. Having read and re-read the transcript and having carefully considered counsel's submissions, we have come to be of the opinion that there was not sufficient evidence to entitle the jury to hold that the appellant must have seen the extreme violence to which the deceased was subjected and which caused his death before he delivered the one or two kicks that he did. It therefore cannot be affirmed that by kicking the deceased as he did he joined in, and took part in, the earlier concerted attack which was delivered with the extreme violence that caused the deceased's death. It follows that there was in our opinion not sufficient evidence to entitle the jury to convict the appellant of murder. We shall therefore quash the conviction of murder and substitute therefor a conviction of assault by kicking the deceased on his head. With regard to sentence in respect of that assault the appeal will be continued to a date to be fixed.