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Cite as: [2005] HCJAC 6, 2005 SCCR 169, 2005 GWD 4-43, [2005] ScotHC HCJAC_6, 2005 SLT 201, 2005 1 JC 252

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Dempsey v. Her Majesty's Advocate [2005] ScotHC HCJAC_6 (27 January 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Kirkwood

Lord Marnoch

Lord Penrose

[2005HCJAC6]

Appeal No: XC131/02

OPINION OF THE COURT

delivered by LORD KIRKWOOD

APPEAL AGAINST CONVICTION

STEPHEN DEMPSEY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Jackson, Q.C., Mitchell; Bruce Short

Respondent: Mulholland, A.D., solicitor advocate; Crown Agent

27 January 2005

[1] On 18 February 2002 at the High Court in Kilmarnock the appellant and his co-accused, Barry Ferguson, were convicted of a charge of breach of the peace and a charge of murder, both of which arose out of incidents which had taken place on 18 October 2001. In relation to the murder charge, the appellant was sentenced on 11 March 2002 to life imprisonment with a punishment part of 12 years, back-dated to 26 October 2001.

[2] The murder charge was in the following terms:

"on 18 October 2001 at the house at 34 Sandyford Road, Mossblown you STEPHEN DEMPSEY and BARRY FERGUSON did assault Charles James Hainey McIntosh, then residing there, and did push him to the ground, hold him down, repeatedly punch and kick him on the head and body, strike him on the head with a saucepan and repeatedly strike him on the head and body with a knife or knives or similar instruments and did murder him; ... "

[3] We are informed by the trial judge that the evidence disclosed that the two accused had gone out drinking on the night in question and were proceeding down Sandyford Road, Mossblown when they stated that they heard some noise in the vicinity of a house which was subsequently found to be occupied by the deceased, who was the householder. Both accused were convicted of the breach of the peace charge which involved throwing a missile at the window of the house in question. The deceased emerged from the house and was, according to a neighbour who was watching, carrying an object of some kind. The evidence raised doubts as to what the object was. It was possibly a bottle, although some reference was made to a golf club. After some discussion between the two accused and the deceased, all three went into the house at the invitation of the deceased and proceeded to have a discussion on a fairly amicable basis. It then appears, however, that matters flared up and a fight took place in the house, which was undoubtedly started by the deceased who had demanded a "square-go". The deceased sustained a substantial number of stab wounds and incised wounds which were widely distributed over his abdomen, chest and head. The stab wounds to the chest and abdomen proved to be fatal, and the deceased died later in hospital.

[4] Both accused lodged special defences of self-defence. The co-accused, Barry Ferguson, gave evidence and he admitted that he had stabbed the deceased repeatedly and that he had been responsible for his death. The appellant gave evidence. He stated that he had seen the deceased coming at him with a knife and a bottle. He had grabbed a cooking pot and hit him on the arm with it. As the deceased was falling back, the appellant grabbed his arms and they both fell to the ground. The appellant was on top of the deceased and had used his legs to pin the deceased's arms to the floor so that he could not use the knife. He had punched the deceased in the face three or four times, shouting at him to let go of the knife. The deceased had then released the knife. The appellant denied that he had struck the deceased with a knife. He had not seen a knife being used, and only became aware of blood when he got up from the deceased. Sharon McIntosh, the wife of the deceased, gave evidence that she had witnessed the incident and had seen the appellant on top of her husband, who was being punched by the appellant and by Ferguson, but she had not seen a knife being used.

[5] The appellant lodged a Note of Appeal against the murder conviction which was in the following terms:

"The learned Trial Judge misdirected the Jury upon the law in so far as he omitted to charge the jury that they must consider the evidence in respect of each accused separately in respect of whether they had the mens rea for murder or culpable homicide.

The learned Trial Judge misdirected the Jury in this regard at line 12 of page thirty of the charge wherein he states:-

'Finally, Ladies and Gentlemen, if you are satisfied that Dempsey is involved in concert art and part with the killing, you will convict him of culpable homicide or murder according to which you have selected for Ferguson. The reason I say that is you can't have Ferguson actually committed the physical act convicted of murder yet Dempsey only being an art and part is convicted of culpable homicide [sic].

It is respectfully submitted that on the basis of the evidence adduced in this case this is a misdirection on the law and as such amounts to a material misdirection which has amounted to a miscarriage of justice."

[6] We were addressed by senior counsel for the appellant and by the advocate depute in relation to those grounds of appeal. It was agreed that if we sustained the appeal on those grounds, it would be appropriate to substitute a verdict of guilty of culpable homicide. However, at the end of the hearing counsel for the appellant sought leave to lodge an additional ground of appeal. The court subsequently allowed the additional ground of appeal to be received, and it is in the following terms:

"The Learned Trial Judge misdirected the Jury on the question of concert where he stated 'You would still have to know or to have the means of knowledge that Ferguson was going to use the knife before he [Dempsey] can be convicted of the consequences of a knife being used.' (Page 15 of the Charge). The Learned Trial Judge reiterates this direction 'as far as Dempsey is concerned, you have got to be satisfied that he - Dempsey - knew or had the means of knowledge that at the time Ferguson was using the knife.' (Page 29 of the Charge). These directions imply that the Jury could convict the Appellant of murder or culpable homicide on the basis of concert even if they found that the Appellant had the 'means of knowledge' but not actual knowledge. The Jury may, accordingly, have convicted the Appellant of murder whilst not finding he had actual knowledge of his co-accused's possession of the knife. As per Peden v HMA 2003 SCCR 605, the Appellant could be convicted as acting in concert in the fatal knife attack only if he actually knew that his co-accused had the knife. This misdirection to the Jury is a material misdirection and, in the circumstances of this case, has resulted in a miscarriage of justice".

If that ground of appeal were sustained, the appellant could not be convicted of homicide.

[7] At a continued hearing we heard submissions on behalf of the appellant and by the advocate depute in relation to the additional ground of appeal. Senior counsel for the appellant submitted that, as it was accepted that it had been Ferguson who had struck the fatal blow with a knife, it was clear that the appellant had been convicted on the basis that he had been acting in concert with Ferguson. In the circumstances it was important that the directions which the trial judge had given in relation to concert had been accurate. At page 15 of the charge the trial judge had directed the jury that the appellant had "to know or have the means of knowledge that Ferguson was going to use the knife" before he could be convicted of the consequences of a knife being used. At page 29 the jury were directed that they had to be satisfied that the appellant "knew or had the means of knowing that at the time Ferguson was using the knife". The effect of the directions given by the trial judge was that it was not necessary for the appellant to have actual knowledge that Ferguson was using, or was going to use, the knife, so long as he had the means of knowledge. In submitting that the directions complained of had constituted a misdirection, counsel relied on Peden v. H.M. Advocate 2003 SCCR 605. In that case there had been an altercation in a public house between the appellant's co-accused Welsh and the complainer. This resulted in a fist fight between the two men outside the public house. The appellant struck the complainer with a piece of wood during the course of the fight. When the fight ended, both men returned to the public house. The appellant remained outside with her child, who was in a pram. She hid the piece of wood in her clothing. Soon after, the complainer and Welsh came out again. Welsh then suddenly stabbed the complainer in the back, arm and face. During the course of this attack the appellant pushed the complainer against a car and hit him with the piece of wood. A bystander, Gerard McGrotty, who watched the incident, said that he could see the knife in Welsh's hand. Welsh himself admitted that he was swinging a knife. The averments in the libel that the assault was to the severe injury, permanent disfigurement and permanent impairment of the complainer related solely to Welsh's use of the knife. The case against the appellant, so far as it concerned the use of the knife, was based on concert. The appellant denied to the police that she knew that Welsh had a knife. The trial judge's charge to the jury in Peden included the following directions:

"Now, when you are considering the doctrine of concert where weapons are involved and where each accused on some view of the evidence has a different weapon you have to consider in the case of Peden whether she knew or saw or ought to have known or seen that there was a knife and the Crown ask you to conclude that she either knew or ought to have known, saw or ought to have seen on the basis of the evidence, some of which I have narrated to you and other parts of which it is for you to remember. If you hold that Peden saw, knew, ought to have seen or known that a knife was being wielded by her man and she persisted in her own attack then you would be entitled to apply the doctrine of concert against her ... The accused says she saw no knife. So although McGrotty may well have seen it, it is a matter for you what you make of his account; you have got to be satisfied beyond reasonable doubt that Marie Peden knew of or ought to have known or seen a knife before you can infer guilt art and part with the knife".

It was held that the trial judge had misdirected the jury on the question of concert. He had directed the jury to the effect that even if the appellant did not know that Welsh had the knife, they could nonetheless convict her as libelled if they considered that she ought to have known that he did. In the circumstances the misdirection had resulted in a miscarriage of justice.

[8] Counsel submitted that the present case was on all fours with the case of Peden, and could not be distinguished. It was also of significance that Sharon McIntosh, the wife of the deceased, had witnessed the incident but had not seen a knife being used by either of the accused. In the circumstances the trial judge had misdirected the jury on the issue of concert and that had resulted in a miscarriage of justice.

[9] In reply, the advocate depute submitted that the case of Peden could be distinguished. In that case there had been three blows with a knife, and it had not been clear that the appellant had been involved in the attack on the complainer from beginning to end. In the present case it had been established on the evidence that the appellant had been involved throughout in the joint attack on the deceased. The incident had started when the appellant had struck the deceased with the cooking pot, knocking him down, and then pinned him to the floor. The assault had ended when the appellant had got up off the deceased. It was clear that the knife wounds had been inflicted while the appellant was on top of the deceased and pinning him to the floor. There were a total of eight stab wounds, namely a penetrative wound above the left ear, a wound to the chest, three wounds to the abdomen and three to the buttocks. There were also a total of nine incised wounds, mainly to the upper body and head. Some of the wounds were consistent with the use of a serrated blade. It was submitted that in the circumstances of the present case there had been an irresistible inference that the appellant, if he had not used a knife himself, had seen Ferguson using a knife on the deceased. The advocate depute further submitted that, read in context, the trial judge had in effect directed the jury that they had to have actual knowledge of the fact that Ferguson had a knife and was using it or was going to use it. In other parts of the charge the trial judge had referred to knowing or having knowledge. In the circumstances there had been no misdirection by the trial judge.

[10] The advocate depute went on to submit that, if there had been a misdirection, it had not resulted in a miscarriage of justice, as in this case there had simply been no room for imputed knowledge. If the court concluded that there had been a miscarriage of justice, the advocate depute invited the court to quash the murder conviction in its entirety and grant authority to the Crown to bring a new prosecution.

Decision
[11] In the particular circumstances of this case, where it was alleged that there had been spontaneous concert and the Crown case was that the appellant must have seen Ferguson using a knife on the deceased, we are of the opinion that the appellant could have been convicted of murder only if the jury were satisfied that it could be inferred from the evidence they accepted that the appellant knew that Ferguson had a knife and was using it on the deceased, and that with that knowledge he had continued with the joint attack on the deceased. It is difficult to know what the trial judge had in mind when he twice introduced the concept of means of knowledge, so far as the appellant was concerned, but it is, in our view, clear that he thereby left it open to the jury to convict the appellant as libelled if they were satisfied that he could have known that Ferguson had a knife and was using it, even if they were not satisfied that it could be inferred that he did know those facts. That view is not affected by the other observations made in the course of the charge to the jury. In our opinion, the trial judge, in giving the directions complained of, misdirected the jury on the issue of concert.

[12] The question then arises as to whether the misdirection resulted in a miscarriage of justice. In that connection the advocate depute submitted that, on the evidence, and particularly having regard to the number and location of the knife wounds and the fact that the appellant had been holding the deceased down at the time, it was an irresistible inference that the appellant must have known that a knife was being used on the deceased by Ferguson. We agree that that is an inference which the jury would have been entitled to draw in this case but we do not consider that it was an inference which, on the evidence, they were obliged to draw. In this case, as in Peden, we cannot exclude the possibility that the jury may have convicted on the basis of what the appellant could have known, rather than what he actually knew, in relation to the use of the knife by Ferguson, and in these circumstances we are satisfied that the misdirection has resulted in a miscarriage of justice. Accordingly, it is not necessary for us to reach a conclusion as to whether or not the submissions which were made to us on behalf of the appellant in relation to the original grounds of appeal were well-founded.

[13] Counsel for the appellant invited us to set aside the verdict of the trial court in relation to the murder conviction, and substitute therefor an amended verdict of guilty of assault. In our opinion, in the particular circumstances of this case, such a course would not be appropriate. We will give effect to the motion of the advocate depute by setting aside the verdict of the trial court, quashing the murder conviction and granting authority to bring a new prosecution in accordance with section 119 of the Criminal Procedure (Scotland) Act 1995.