Scottish High Court of Justiciary Decisons

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Cite as: [2005] HCJAC 140, [2005] ScotHC HCJAC_140

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lady Cosgrove

Lord Sutherland

[2005HCJAC140]

Appeal No: XC462/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST CONVICTION

MARK HARRISON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shaffer, Q.C., Miss M. Jack; Anika Jethwa & Co., Dundee

Respondent: A. Stewart, Q.C., A.D.; Crown Agent

23 November 2005

[1] The appellant along with a co-accused Andrew Stewart Malone stood trial on a charge of murder. According to the terms of that charge, on 21 January 2004 at an address in Dundee they assaulted the deceased, seized him by his clothing, and repeatedly struck him on the body with a knife and a sword or similar instruments, having previously evinced malice and ill-will towards him. The co-accused was convicted of murder. The appellant was convicted of culpable homicide, and has appealed against his conviction.

[2 ] The co-accused lived with the appellant in the top flat of a four-storey building in Dundee. In the course of the afternoon of 21 January 2004 Claire Ann Petrie went to the flat. For some time she had had a relationship with the co-accused. She was in the process of moving into the flat from the flat of the deceased, with whom she had had a previous relationship for about six years. Claire Petrie and the deceased were heroin users and were in the habit of purchasing drugs from the co-accused. When she arrived at the flat she told the two accused and a young man Barry Murray that the deceased had hit her on the face and injured her cheekbone (this was not true, she said in evidence, as she had in fact hit her head accidentally on a pole in a bus on which she was travelling). When she told them that she was meeting the deceased on the following day, they said that they would accompany her in order to make sure that she would not be hurt and could retrieve her belongings from the deceased's flat. Some days before, the co-accused said that he was going to sort out a few things with the deceased for "grassing" on him to the police, so that they "bust him for drugs".

[3 ] At about 10 p.m. the deceased came to the front door of the block of flats and sounded the buzzer for the flat occupied by the appellant and the co-accused. This led to the co-accused leaving the flat and going downstairs with a knife. The appellant and Murray also left the flat and went down (there was conflicting evidence as to the response when the appellant answered through the intercom. Claire Petrie stated in evidence that, when the appellant realised that it was the deceased, he said: "You, ya prick, I'll be down in a minute", and that she went to wake the co-accused who was dozing. The co-accused was the first to leave the flat. Murray said that he followed the appellant downstairs. The appellant stated that he answered through the intercom: "Wait and I'll be down in a minute". He wakened the co-accused and told him that the deceased wanted to talk to him. The co-accused was the first to leave the flat). It is not in dispute that thereafter there was a confrontation between the co-accused and the deceased on the ground floor, which spilt out of the building. In the course of a struggle between them the co-accused stabbed the deceased. The cause of death was a single stab wound to the back of the chest, which penetrated the deceased's left lung and heart. There was evidence that thereafter the co-accused said to Claire Petrie: "I told you I would do it".

[4 ] As the trial judge pointed out to the jury in his charge (at page 43 of the transcript), the only basis on which they could convict the appellant of murder or culpable homicide was that he was guilty art and part.

[5 ] It is not in dispute that there was sufficient evidence to entitle the jury so to convict the appellant of culpable homicide. There was evidence that, prior to being interviewed by the police, he volunteered the remark to a police officer: "Andy Malone will speak up now he knows I have been detained. He tried to stab him in the arse but missed". The appellant was interviewed by the police on two occasions on the morning of 22 January 2004. In the course of the first interview he repeatedly denied he had seen the co-accused with a knife. However, at a later stage in the first interview, and in the second interview, he admitted knowledge of the knife. In his report the trial judge refers to the following passage in the second interview:

"DC When both you and Andrew left your house, did you see Andrew pick up a knife or have in his hand a knife in your house.

A He had a knife in the house, yea

DC Is that just as you ran out of your house, you both go down the stairs.

A He had it on him before we went out

DC Did you see him with the knife as you were going out of the house

A Aye, he was the first one out the door but he had it on him before a couple of seconds before we left".

The trial judge states that the appellant went on to say that he had seen the co-accused pick something up from the arm of the chair or the table as he had told the co-accused that the deceased was at the door. He also admitted fighting with, and striking, the deceased. We should perhaps add that in the course of one of his police interviews the appellant stated that at some point earlier in the day he said to Claire Petrie that he was going to smash the deceased's head "all over the place" (which could account for the jury including the evincing of malice and ill will in the conviction).

[6 ] In his evidence Murray said that he did not see a knife being taken from the flat. He accepted the truth of a statement which he had made to the police that he had heard the appellant saying something like "catch him" as they went downstairs.

[7 ] The appellant gave evidence that in the course of the day he had consumed a quantity of valium and prescription methadone. The co-accused did not look happy about the information which Claire Petrie had given about the deceased assaulting her, but he did not think that he would injure the deceased. He did not see the co-accused pick up anything. Claire Petrie told him and Murray to go downstairs after the co-accused, which they did. On the way down he was delayed by falling. Looking down the stair he saw the co-accused struggling with the deceased, rolling about on the ground and then getting to their feet. He saw the co-accused punch the deceased, and the deceased run away. At no point did he see the co-accused with a knife or any weapon. For his own protection he had taken downstairs an ornamental sword, which was in its scabbard and wrapped in two bin bags. He was concerned that the deceased might have friends there. He denied using the sword or becoming involved at all in the fight. It may be noted that Claire Petrie stated to the police that she remembered the appellant stating that he had hit the deceased with the sword. In evidence she said that she accepted that this was true. The appellant gave evidence that Claire Petrie's statement was a lie. The appellant also gave evidence that when the co-accused was using a knife in the kitchen at about midday he said in his hearing that when he saw the deceased on the following day "he's getting that". A defence witness, Dr Johnston, gave evidence that the state of anxiety of the appellant, together with the drugs which he had consumed, could have affected the answers which he gave in interview. However, this would not have extended to the appellant confessing to things that he had not done.

[8 ] The evidence of the co-accused was that after he had taken a few steps across the living room towards the front door of the flat he picked up a domestic knife which was on a table and went straight downstairs, holding the knife close to his side. He accepted that he had stabbed the deceased fatally.

[9 ] The trial judge gave the jury general directions as to the law of concert in terms to which no exception is taken (pages 31-33 of the transcript). He asked them to consider whether there was a common criminal purpose; and, if so, what it was. They should then consider separately in relation to each accused whether he was a party to that common criminal purpose and, if so, to what extent. He reminded them that the Crown case was that the evidence demonstrated a joint or common purpose to assault the deceased with a lethal weapon and that both accused were guilty of murder. He then directed the jury, in accordance with the statement of the law in Mackinnon v H M Advocate 2003 SCCR 224 at paragraph 32, that where an accused actively associates himself with a common criminal purpose which is or includes the taking of human life or carries the obvious risk that human life will be taken, he may be guilty of murder even if the fatal injury is inflicted by the other person.

[10] At page 34 the trial judge went on to say:

"Where the position is that the accused is proved to have participated in some less serious common criminal purpose than the one I've just identified - that is to say the one that includes the taking of human life or the obvious risk that human life will be taken - if there is a less serious common criminal purpose even one that involves weapons but perhaps... for example, simply to frighten a person, then the accused person who participates in such a purpose and knows that weapons are being carried albeit for a limited purpose then that accused may be guilty of culpable homicide if in the course of that more limited purpose the person is killed and in that circumstance again it does not matter who inflicted the fatal injury, both are guilty acting in concert".

At page 35 the trial judge added that if they did not find it proved that there was a common criminal purpose at all, they had to look at the actings of each of the accused individually and determine his individual responsibility without reference to the common criminal purpose. He then referred to evidence founded on by the Crown and the defence in regard to the appellant.

[11 ] For the appellant Mr Shaffer submitted that the trial judge's charge was deficient in that he failed to direct the jury that, before convicting the appellant, they required to be satisfied that he was aware that the co-accused had a knife when he left the flat and went downstairs. The fact that the jury did not convict the appellant of murder suggested they were not satisfied that, so far as he was concerned, there was an obvious risk that the deceased was likely to be severely wounded. There was no evidence of any antecedent concert. There was abundant evidence that the co-accused had snatched up the knife and left the flat. Events had unfolded suddenly. There was no evidence that the two accused planned or discussed the use of the knife for a limited purpose, which might have entitled the jury to take a sympathetic view of the appellant's involvement. (As for the co-accused, it could be inferred that the jury considered that he must have turned a blind eye to such a risk, rejecting his account that he sought only to frighten the deceased). It was conceivable that the jury did not consider that the appellant had seen the knife being taken, but convicted him because he had taken the sword with him. However, he said that he had taken it on the spur of the moment. He might have intended to confront the deceased, using it as a stick, or punching and kicking him, whereas the co-accused went on to stab the deceased. As Lord Moncrieff pointed out and illustrated in Doherty v HM Advocate 1945 J C 89 at page 96, secondary responsibility for a criminal act arises only in cases of reasonable expectation. There was evidence that Murray, who ran downstairs with the appellant and saw no weapon, said to the police that he had been intending to fight and "kick Gary's cunt in". The jury might have used that evidence to throw light on the reason why he and the appellant went downstairs. The passage at page 34 of the charge was not helpful, since the death of the deceased was not due to the use of any "weapon" other than the knife.

[12 ] We are not persuaded that the charge was deficient in the respect for which Mr Shaffer has contended. We consider that, in the light of the charge read as a whole, the jury can have been in no doubt that the guilt of the appellant, whether in respect of murder or of culpable homicide, depended on his being party to a criminal purpose which involved the use of a knife. We note that at pages 35-38 of his charge the trial judge reminded the jury that the Crown founded on evidence as to the remark made by the co-accused earlier in the day, the appellant arming himself with the sword before going downstairs after the co-accused, the remark which was overheard by Murray, and the admissions made by the appellant to the police in regard to his knowledge that at the co-accused had a knife and his involvement in fighting with and striking the deceased. He set out these admissions for the jury at some length. As the Advocate depute pointed out, the jury also had heard the evidence as to the remark which the appellant had volunteered to a police officer.

[13 ] Having referred to the evidence and submissions relied upon by the defence, the trial judge directed the jury that there was sufficient evidence to allow them to find that accused were acting in concert, and accordingly could be found guilty of murder. He also directed them that in the event that they concluded that there was no common criminal purpose of which the appellant was a participant, they could not convict him of either murder or culpable homicide. We are not persuaded that the fact that the jury convicted the appellant of culpable homicide implies that they were not, or may not, have been satisfied that he knew that the co-accused was carrying the knife when he left the flat and went downstairs. The evidence relating to the appellant's sword was capable of supporting the conclusion that the common intent of the appellant and the co-accused was to attack the deceased with a weapon. The verdict of culpable homicide was entirely consistent with the jury inferring that, whereas he knew that the co-accused was carrying the knife, he did not participate in a criminal purpose which carried the obvious risk that human life would be taken.

[14 ] The appellant's appeal against conviction is accordingly refused.