Lord Justice General
Appeal No: C870/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD KINGARTH
NOTE OF APPEAL AGAINST CONVICTION and SENTENCE
HER MAJESTY'S ADVOCATE
Act: Alonzi; G. Sweeney & Co.
Alt: Solicitor General; Crown Agent
15 April 1999
This is an appeal against conviction by Graham Munro who, on 26 September 1997, was found guilty, after trial before a sheriff and jury in Fort William Sheriff Court, of a charge that on 13 July 1996 at a house at 9 Douglas Place, Fort William he did, with the purpose of extorting money from Jeffrey MacMaster residing there at said house, with menaces demand money from him and did repeatedly strike him on the head and body with shinty sticks or similar instruments all to his severe injury and to the danger of his life. At the outset of the trial the charge was directed not only against the appellant but against three co-accused, Sean Patrick Condon, Raphael Anthony Condon and Edward Thomas Beattie. Prior to the close of the Crown case two of the co-accused pled guilty to the charge (with a minor adjustment). The jury found the other co-accused, Beattie, guilty but under deletion of the words "did repeatedly strike him on his head and body with shinty sticks or similar instruments all to his severe injury and to the danger of his life". On 12 November 1997 (after a remit to the High Court by the presiding sheriff) the appellant was sentenced to five years imprisonment backdated to 25 September 1997. Although the appellant has appealed also against sentence, this part of his appeal was not insisted on before us.
The first ground of appeal was that there was insufficient evidence to entitle the jury to convict. While it was accepted that there was sufficient evidence to the effect that the appellant had been present in the flat at the time of the assault, there was, it was submitted, no evidence to entitle the jury to infer more and in particular to infer that the appellant was acting in concert with those who carried out the assault. We do not consider there is any substance in this ground of appeal.
The evidence before the jury included evidence from a Crown witness, Mrs. Roberta Palmer, who had at 6.35 in the morning of the day in question, a short time before the complainer was assaulted, heard car doors slamming. On looking out of her front door in Douglas Place, Fort William, she had seen four men walking in line abreast down the street and round a corner in the direction of the complainer's flat which was nearby. Two of the men were carrying shinty sticks. Asked about their demeanour as they walked down the street away from her she said that she "knew fine that they were not going to play shinty at that time". She identified one of the men carrying a shinty stick as one of the co-accused who pled guilty. She then heard shouting and yelling and telephoned the police. A few minutes later she saw the same four men coming back up the street and getting into the car, a red Volvo estate. The men, at that stage, were laughing and joking. Two objects were thrown into the back of the car. Another witness Ms. Caroline Stewart, who lived in the flat immediately below the complainer's flat, said that at about half-past six she had been wakened by loud bangs, crashes, swearing and shouting which lasted about five minutes. She had heard footsteps running down outside her flat. She had looked out of her kitchen window and had seen a car door slam on a big red estate car. A short time later, and a short distance away, police officers stopped a red Volvo estate "identical" to the one seen by Mrs. Palmer and like the one seen by Ms. Stewart. There were four men in the vehicle which belonged to, and was being driven by, the appellant. The others were the two co-accused who pled guilty and the other co-accused Beattie. Two shinty sticks were recovered from the car. There was blood on the head of one of the sticks which DNA evidence indicated could have come from the complainer. It was accepted before us in these circumstances that the jury would have been entitled to take the view that the appellant was one of the four men seen by Mrs. Palmer heading in the direction of the complainer's flat and apparently returning to the car after the assault.
In addition evidence was given by a forensic scientist to the effect that a small blood smear on the front of the lower left leg of the appellant's jeans indicated slight contact with wet blood on an object or person. Minute blood spots on the upper and lower fronts of the legs of the jeans indicated that the wearer had been close to a source of minute airborne blood droplets, such as those formed by an object striking a surface wet with blood. Furthermore, minute blood spots and a blood drip on the uppers of the left training shoe of the appellant had been nearby someone dripping blood. Two other forensic scientists spoke to a DNA report which concluded that blood on the jeans and left training shoe of the appellant could be from the complainer. The profile of the complainer's blood would have been found in the case of 1 person in 173,000. It was accepted before us that on the basis of that evidence the jury could conclude that the appellant was in the flat at the time of the assault on the complainer.
The complainer sustained multiple injuries, including a fractured skull, blood clot on the brain, a broken and dislocated right shoulder and a dislocated left shoulder and multiple bruising - all apparently consistent with multiple blunt force trauma. He had no memory of the incident. He spoke of owing £2,000 to the co-accused Sean Patrick Condon. Some apparently unsatisfactory evidence was given by the only other person in the flat, Mark MacDonald - ultimately to the effect that he had seen three men in the livingroom of the flat at one stage of the assault on the complainer, including the two co-accused who had pled guilty, one of whom had a shinty stick in his possession, and a third man who also had a shinty stick and who struck the complainer on the back but whom the witness was not able to identify. He spoke of hearing a reference to £1,000 or £2,000. In his defence before the jury the co-accused Beattie relied on an interview with the police in which he accepted that he was one of a number of men who went to the door of the flat, two of whom were carrying shinty sticks, but in which he also maintained that he did not go further than the door of the livingroom and was not party to any planned attack on the complainer. The appellant himself did not give evidence and essentially made no comment in an earlier police interview.
In these circumstances it seems to us to be clear that there was ample evidence (particularly the evidence of Mrs. Palmer taken together with the police evidence) to entitle the jury to conclude, in the absence of any alternative explanation, not merely that the appellant was present in the flat but - at least - that he was there to give such support and assistance as might be necessary in a concerted attack on the complainer. It was therefore open to the jury to conclude that he was a party to that attack.
The second ground of appeal related to circumstances in which evidence of the police interview of the co-accused Beattie was placed before the jury.
As part of the Crown case the procurator fiscal sought to play a tape recording of the interview. Tape recordings of police interviews with the appellant and another co-accused had already been played to the jury and, to assist the jury to follow these, tape transcripts had been made available to them. When the procurator fiscal sought to play the tape of Beattie's interview, as the sheriff explains in his report, objection was taken to the playing of the tape on the basis that it contained statements of a co-accused made outwith the presence of the appellant which would not be admissible evidence against the appellant. It was said that the interview contained references to a number of persons other than the co-accused Beattie.
No objection to the playing of the tape was taken on behalf of Beattie. So far as the case against him was concerned the interview was in the nature of a mixed statement. As already indicated, in it he accepted that he was one of a number of men who went to the door of the flat, two of whom were carrying shinty sticks, but he maintained that he was not party to any planned attack on the complainer. Within the interview he also gave certain answers, apparently incriminatory of the appellant - inter alia indicating that he too was one of those who went to the door of the flat (indeed that it was the appellant who got the two shinty sticks out of the boot of the car and that he was carrying a shinty stick at the door to the livingroom). He also said, however, that he had not seen the appellant take part in the attack.
In his report the presiding sheriff further tells us that the basis of the objection taken on behalf of the appellant at this stage was that the appellant would suffer prejudice if an unedited version of the tape was played. Considering in particular that the interview formed a necessary part of the Crown case against Beattie, he repelled the objection and allowed the tape to be played. At the same time he took the view that the jury should not, at that stage at least, see the transcript. Prior to the playing of the tape he directed the jury specifically to the effect that nothing said in the tape could be admissible evidence against the appellant.
In the event Beattie did not give evidence and sought to rely on the position adopted by him in the tape-recorded interview. In his charge to the jury the presiding sheriff directed the jury more than once that nothing in the tape could be evidence against the appellant and that they could have no regard to it in assessing the case against him. During the course of their deliberations, and apparently shortly after they were invited to retire, the jury asked to see the transcript of the interview. The presiding sheriff in his report indicates that objection at that stage was taken on behalf of the appellant to the jury being allowed to see the transcript. He tells us that no question of providing an edited transcript was raised. He informs us that at that stage, mindful of the interview's "considerable importance" to the co-accused Beattie, he took the view that to attempt then to edit the transcript would only serve to highlight the omitted parts, and he acceded to the jury's request.
Before us it was submitted first that at the initial stage the presiding sheriff should not have allowed the tape to be played but should instead have allowed an edited transcript of the evidence to go before the jury. It was submitted that this had been, at least in part, the submission made on behalf of the appellant at that stage of the proceedings. Secondly, it was submitted that in any event when the jury asked to see the transcript, at what was said to be a critical stage, the presiding sheriff should only have provided an edited version. Again it was submitted, as we understood it, that this had been part of the submissions made on behalf of the appellant at that time.
As to the first of these submissions - which appeared to be a development of the written grounds of appeal - we observe initially that the presiding sheriff in his report does not, as above recorded, indicate that at the stage when the Crown sought to play the tape the appellant's position was that an edited transcript should alone have been placed before the jury. Be that as it may, how the presiding sheriff chose to deal with the objection was a matter within his discretion. In deciding to allow the tape to be played he appears to have considered carefully at least two specific factors, first, that the Crown (to whom the evidence of the interview was apparently important in the case against Beattie) wanted to play the tape; secondly, that recordings of interviews with the other accused had already been played. In these circumstances he took the view that the appropriate course, so far as the appellant was concerned, was to allow the tape to be played but to remind the jury then (as he did later) that nothing said in the interview could be evidence against the appellant. While in many such cases it may be that the course which would most fairly protect the interests of all parties would be to allow evidence to be led in the form of an edited transcript, we cannot say that in the circumstances of this case the presiding sheriff erred in the exercise of his discretion.
As to the second submission - which also appeared to be a development of the written grounds of appeal - we again observe that the presiding sheriff in his report does not indicate that the submission to him, when the jury asked for the transcript, was that an edited transcript should be made available to them. At all events, when the jury (who no doubt wanted to be reminded of the terms of the interview which they had already heard in full) sought to see copies of the transcript, it was once more a matter within the discretion of the presiding sheriff. He appears to have considered carefully that it was plain, at that stage at least, that the evidence of the interview was of critical importance to the co-accused Beattie and that to try to edit the transcript would involve the risk, so far as the appellant was concerned, of simply highlighting the omitted parts. We cannot say - particularly in circumstances where the jury had heard the tape in full already - that in acceding to the request he erred in the exercise of his discretion.
In these circumstances the appeal against conviction is refused.