Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2003/58.html
Cite as: 2003 SCCR 772, 2003 GWD 36-1006, [2003] ScotHC 58, 2003 SLT 1337

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JISCBAILII_CASE_CRIME_SCOTLAND Docherty v. Her Majesty's Advocate [2003] ScotHC 58 (07 November 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Abernethy

Lord Cameron of Lochbroom

XC785/03

OPINION OF THE COURT

delivered by LORD OSBORNE

NOTE OF APPEAL

AGAINST CONVICTION

STUART DOCHERTY

Applicant;

against

HER MAJESTY'S ADVOCATE

Respondent:

____________

Act: Brown; Brodies, W.S. (Robert Carty & Co., Blantyre)

Alt: Di Rollo, A.D., Q.C.; Crown Agent

7 November 2003

The Background:
[1] The appellant, along with a co-accused, Michael James Archibald, faced an indictment containing a single charge to the effect that:

"on 22 January 2000 at Sutherland Street, High Blantyre, you Stuart Docherty and Michael James Archibald did assault John William Little Kane,.... repeatedly strike him on the head and body with knives or similar instruments, whereby he was so severely injured that he died later the same day at Hairmyres Hospital, East Kilbride, and you did murder him."

The appellant and his co-accused pled not guilty and went to trial. On 4 July 2000, the jury, by a majority, found the appellant guilty as libelled and found his co-accused guilty of culpable homicide.

[2] The circumstances of the offence, as summarised by the trial judge in his Report, were these. On the night of Friday 21 January, going into the early hours of 22 January 2000, the now-deceased, his wife, Mrs Marilyn Kane, her sister, Alison Brown, and her boyfriend, Robert Murray, had attended a family party in High Blantyre. On their way home, as they were crossing a grass area close to their own house, shortly after midnight, they were approached by two boys. Mrs Kane in evidence described hearing her husband's nickname being shouted. These boys started to run at the group. They shouted something about Springwell, an area of High Blantyre where the now-deceased used to live and to which they apparently took exception. The two boys were the appellant and his co-accused. Mrs Kane gave evidence to the effect that the appellant had struck the now-deceased with a knife repeatedly about the head. She went on to describe how, after the now-deceased had collapsed, both boys started repeatedly to stab him on the body and head, both having been equipped with knives. They had stood over him as he lay collapsed on the ground, screaming to leave him alone. Robert Murray gave evidence to a similar effect, although he had not been able to say which of the two boys had first started stabbing the now-deceased. Alison Brown had seen the two with knives running towards the now-deceased, but had seen no more, as she had tried to get away. Although these last two witnesses had not identified the co-accused, two young children had given evidence to the effect that they had seen the two running nearby with knives shortly after the event. Earlier, each of the two had been seen to have had a knife while in company with others. A witness, Carrie Tonner, gave evidence of having received a telephone call from Glasgow from the co-accused, at about 3.00am on the day following the events. The co-accused had said that somebody had "got murdered". This witness testified that she had heard the appellant in the background on the telephone and, when she had asked who had done it, she said that she had heard the appellant starting to laugh.

[3] The evidence demonstrated that the now-deceased had been able, with difficulty, to make his way to his own house, where he collapsed. He was taken to Hairmyres Hospital, but, despite surgical intervention, died shortly thereafter. The evidence of the pathologists was that there were six incised wounds to the head, although two or three of these could have been caused by one blow. While these wounds could have bled extensively, they had not caused damage to any vital structure. There were at least two incised wounds on the fingers, which were typical of defensive wounds. Furthermore, the now-deceased had received three stab wounds. One of these, on the front of the chest, had not done damage to any vital structure. The other two both entered the right chest and the abdomen, causing severe injuries to the right lung and the liver. In particular, one stab wound caused further injuries to the inferior vena cava and the aorta. These wounds had led to extensive haemorrhage and death. All of the wounds were consistent with having been inflicted by a knife or knives. In the course of the trial, the Crown had accepted that it had not been able to prove which of the two accused had inflicted the fatal wounds.

[4] At the trial, the appellant did not give evidence. Suggestions were put to Crown witnesses in cross-examination that the now-deceased and Mr Murray had produced knives after a verbal confrontation and that they, rather than the accused, had started the trouble. The co-accused gave evidence broadly to that effect, claiming also that, if he had struck the now-deceased at all, it was only once to the right side of the head at the start of the incident when he had attacked him. On behalf of the appellant it had been submitted that the jury should convict only of culpable homicide, the Crown not having excluded beyond reasonable doubt the question of provocation. On behalf of the co-accused it had been submitted that he should be acquitted, on the basis that the jury should accept that, if he had assaulted the now-deceased at all, it was only once and in self-defence. Alternatively, the submissions made on behalf of the appellant in relation to provocation were adopted.

[5] The appellant has now appealed against his conviction on the following grounds:

"From the terms of the Judge's Charge at pages 32 and 33 for example, it is clear that an essential part of the prosecution case against the appellant and his co-accused was reliance upon the doctrine of concert, there being no attempt to suggest that the delivery of the fatal blows could be proved against one or other of the accused.

The learned trial Judge's directions on concert are to be found in pages 18-22 of his Charge, and include, within the context of concert, consideration of whether the jury would be entitled to convict of murder or culpable homicide. However, it is respectfully submitted that the learned trial Judge erred in law as he failed to direct the jury specifically that if they were to rely on concert, it would not be possible, in the particular circumstances of this case, to distinguish between the two in terms of any verdict.

Furthermore, while it was properly emphasised that without satisfactory evidence of a common criminal purpose, it would not be possible to convict on the basis of concert, the learned trial Judge erred as he failed to give any adequate directions as to what the jury should do if this course of action were to be followed. No guidance was given to assist in assessing the individual actings of either accused, nor were the jury directed as to what crimes they could convict of. Given that the Crown accepted there was no proof of which accused delivered the fatal blows, it is submitted that the trial Judge ought to have directed that on the evidence no distinction could be made between the accused in terms of the verdict.

In these circumstances, it is submitted that the failure to give such directions has resulted in a miscarriage of justice. The jury did distinguish between the accused and convicted the co-accused of culpable homicide. It is submitted that no reasonable jury, properly directed, could have delivered such verdicts and that the appellant's conviction for murder should be set aside and an amended verdict of guilty of culpable homicide substituted therefor."

The Submissions:
[6] When the appeal came before us, counsel for the appellant, having explained the background of the case, submitted that the trial judge ought to have directed the jury that no distinction could be made between the two accused. No reasonable jury, properly directed, could have reached the decision reached by the jury in this case. Self-defence was no longer part of the case, since it had plainly been rejected by the jury.

[7] Counsel for the appellant accepted that there could be discriminating decisions in particular circumstances, as appeared from Melvin v Her Majesty's Advocate 1984 S.C.C.R. 113. In that case the appellant and another man had been charged with robbery and murder. There had been no evidence of any antecedent concert to rob or assault the victim, and there had been evidence that the other man played a lesser part in the offence. The jury had convicted the appellant of murder and the other man of culpable homicide. The appellant had appealed on the ground, inter alia, that the verdict was inconsistent. It had been held that a jury were entitled, in the absence of intent to kill or any antecedent concerted intention to carry out an assault and robbery, to assess the degree of recklessness displayed by each participant, and to return verdicts of murder of culpable homicide in accordance with that assessment. Counsel for the appellant referred, in particular, to the observations of Lord Cameron at p.117 and Lord Avonside at p.118. He made clear that, in cases where a distinction was to be made on the evidence between the positions of two accused in an incident such as that involved here, discriminating verdicts were proper. Counsel for the appellant maintained that that approach, exemplified in Melvin v Her Majesty's Advocate, was consistent with the recent decision of McKinnon and Others v Her Majesty's Advocate 2003 SCCR 224. It was necessary to focus on the facts of each particular case. However, in the present case, the jury were not entitled to rely on evidence of self-defence which they had rejected in the case of the co-accused, in order to reach the discriminating verdict which they had selected. In that connection reference was made to Malone v Her Majesty's Advocate 1988 S.C.C.R. 498, at p.508. In that case it had been emphasised that, if a distinction was to be made in a case involving a joint assault causing death, between the positions of the accused, it could normally be justified only where there were striking differences in the conduct of each assailant. In the present case, as claimed in the grounds of appeal, the trial judge had failed to direct the jury in relation to that matter. In the particular circumstances of this case, it had not been open to the jury to make a distinction between the two accused. In effect, the contention of the appellant was that there should have been a direction given to the jury that, if there were to be a conviction, there had to be the same conviction against both accused. In response to a question by the court, counsel for the appellant contended that the passage at page 4 of the trial judge's Report, to the effect that there was evidence which could have led to a distinction between the two accused, in particular, evidence that the lead had been taken by the appellant, who had also later, apparently, shown a callous disregard for the fate of the deceased, was unwarranted. The matters referred to did not constitute a sufficient basis for a distinction. The Crown's position had been that both accused had been in the same position and there should have been a direction given to the jury confirming that no distinction between them would be justified. In that connection reference was made to Humphries v Her Majesty's Advocate 1994 S.C.C.R. 205. In that case a direction had been given to the effect that they could not convict either accused, except on the basis of concert. However, there had been evidence capable of showing that one accused might have been guilty as actor. Accordingly the jury had been misdirected. In the present case, however, there was no such evidence and accordingly the direction desiderated should have been given. In all the circumstances the verdict returned here was one which no reasonable jury, properly directed, could have reached. Accordingly, the conviction recorded against the appellant of murder should be quashed and, in its place, a conviction of culpable homicide substituted.

[8] On behalf of the Crown, the Advocate Depute submitted that the trial judge had not been under the necessity of giving the direction desiderated. In approaching the matter as he had done, he had acted correctly even having regard to what had been decided in McKinnon and Others v Her Majesty's Advocate. On the assumption that that submission was wrong, any failure to give the direction concerned had operated in the accused's favour. The verdict returned by the jury in relation to the appellant had been the correct verdict which the jury had in reality been bound to return if provocation had been rejected. The charge in this case had been delivered before the decision in McKinnon and Others v Her Majesty's Advocate; accordingly Brown v Her Majesty's Advocate 1993 S.C.C.R. 382 had been the basis of the charge. McKinnon and Others v Her Majesty's Advocate had been a case of antecedent concert; the problem in the present case was one deriving from the fact that the concert was spontaneous. The case of Melvin v Her Majesty's Advocate was an appropriate guide to the kind of situation which existed here. The submission of the Crown was that there was material in the evidence before the jury which was capable of justifying the distinction which they had made between the position of the appellant and the co-accused. It was quite plain that the appellant had taken the lead in the attack upon the now-deceased. Furthermore, there was material, referred to at pages 30 and 31 of the charge, indicating the appellant's state of mind at the time of the attack. In addition, the jury had seen and heard the co-accused giving evidence and so had been in a position to reach a conclusion as to his state of mind. In a case of spontaneous concert, of which the present case was an example, the scope of the concerted activity had to be a matter of inference from the circumstances of the event. In the circumstances here the jury had been entitled to reach the conclusion which they did. The position taken up on behalf of the appellant at the trial was that his only defence was one of provocation. It had not been argued on his behalf that the event itself did not amount to murder. While it might not be wholly clear why the jury had decided to make a distinction between the two accused, the fact that they had done so did not infer that the verdict reached against the appellant was unsound. In this connection reliance was placed on Moir v Her Majesty's Advocate 1993 S.L.T. 1191, at page 1195.

The Decision:
[9] It was accepted by counsel for the appellant that, where two or more persons were charged with murder and where antecedent concert was not involved, in appropriate circumstances it was open to a jury to make a distinction between the different accused persons and, in particular, to convict one of murder and another of culpable homicide, upon the basis of their different levels of participation in the events leading to the death. The basis for the making of such a distinction can be found in Melvin v Her Majesty's Advocate and Malone v Her Majesty's Advocate. However, the position taken up on behalf of the appellant was that the circumstances of the present case did not permit such a discriminating verdict to be reached. In that situation, it had been incumbent upon the trial judge to give the jury the direction desiderated in the grounds of appeal, to the effect that, if they were to rely on concert as was necessary in the circumstances of this case, it would not be possible in the particular circumstances to distinguish between the two accused in terms of a verdict. In these circumstances, it is plain that the issue of whether the direction desiderated ought to have been given depends upon whether it was open to the jury, in the factual circumstances of this case, to conclude that there were "striking differences in the relevant conduct of each of the assailants", to use the words employed by the Lord Justice General in Malone v Her Majesty's Advocate.

[10] We have reached the conclusion that it was open to the jury here to proceed in that way. It appears to us that, having regard to the evidence before the jury, they were entitled to conclude that the appellant had taken the leading part in the events which led to the death of the now-deceased. Mrs Kane described how her husband's name had been shouted out by the appellant himself prior to the commencement of the attack. Following upon that Mrs Kane described how both the appellant and the co-accused ran towards the now-deceased and those in his company holding knives. Acts of violence commenced when, according to Mrs Kane, the appellant raised his knife and proceeded to use it on the side of the now-deceased's head. Following that, the now-deceased had stumbled, after which the appellant again raised his knife and "stuck it into him". Thereafter, the now-deceased collapsed on to the ground, following which both the appellant and the co-accused repeatedly stabbed him on his body and head. Also of importance, in our opinion, was the evidence of Carrie Tonner, who spoke of having received a telephone call from Glasgow from the co-accused at about 3.00am on the day after the events in question. He had said to her that someone had been murdered. The witness said that she had heard the appellant in the background on the telephone call and when she had asked who had committed the murder she said that she had heard the appellant starting to laugh. That was a matter upon which the trial judge had given the jury directions at pages 30-31 of the charge. He indicated to them that that was a matter capable of throwing light on the state of mind of the appellant at the time of the events in question. As the trial judge observes in his report to us, that material might be used to show a callous disregard for the fate of the now-deceased on the part of the appellant. Finally, it has to be borne in mind that the co-accused gave evidence, although the appellant did not. That being so, the jury had the opportunity of assessing the nature and quality of the involvement of the co-accused in the attack. In the light of all of these circumstances we are persuaded that the jury were entitled to make a distinction between the positions of the appellant and the co-accused in the concerted attack. Upon that basis, it would have been inappropriate and indeed wrong for the trial judge to have given the direction desiderated. For these reasons we consider that the present appeal must be refused.