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Reid v Her Majesty's Advocate [2005] ScotHC HCJAC_70 (10 June 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Penrose

Lady Cosgrove

Lord Bracadale

[2005HCJAC70]

Appeal No: XC587/03

OPINION OF THE COURT

delivered by LORD PENROSE

APPEAL AGAINST CONVICTION

PAMELA REID

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: M. Scott, Q.C., C. Shead; Wilson McLeod, Edinburgh

Respondent: G. Bell, Q.C., A.D.; Crown Agent

10 June 2005

[1] On 10 April 2002, the appellant was convicted at the High Court at Edinburgh of four of five charges on indictment. In summary, these were:

A charge of assault, on the evening of 1 August 2001, while acting along with three others, John Thomson Garden, her brother Greg Reid, and Shevonne Clarke, by forcing entry to the flat occupied by Keith Edward Connor, by repeatedly punching and kicking Connor on the head and body and striking him repeatedly on the head and body with a baton and a telephone, to his severe injury. The incident took place at some point between 8.45 and 9.16 p.m.
A second charge of assault, at the same place and time and with the same co-accused, by repeatedly punching and kicking John Thomas Brankin on the head and body, and striking him repeatedly with a baton to his severe injury.
(Withdrawn)
A charge relating to an incident later the same evening, at some point between 10.20 and 10.35 p.m., when she and Shevonne Clarke again entered Connor's flat and assaulted him by stabbing him repeatedly on the body with a knife, to his severe injury, permanent disfigurement and to the danger of his life, and attempting to murder him.
A further charge relating to the second incident, of stabbing Brankin on the body with a knife, while acting along with Shevonne Clarke, and of murdering him.

[2] Leave to appeal against conviction was granted in respect of charges 4 and 5. Substituted grounds of appeal were lodged on 12 November 2003, and received on 12 December 2003. At the hearing of the appeal counsel intimated that argument would be presented in support only of a single ground relating to charge 5. The ground of appeal was that:

"In respect of charge 5 there was no evidence to entitle the Jury to find that the fatal assault was within the scope of any common criminal purpose embarked upon by the Appellant. Notably:

The only interpretation of the purpose of the second visit to the flat was to assault the complainer in charge 4.
There was no basis on the evidence to consider that what happened to the deceased 'was likely to have happened and ought to have been reasonably foreseen'.
The nature of the assault on the deceased was eloquent of an unexpected and sudden departure from any plan by the actor.
There was no evidence of association with this assault. There was no basis upon which the lethal act could be ascribed to a joint purpose."

[3] As the terms of this ground of appeal make clear, there was no suggestion in the appeal that the trial judge had misdirected the jury, or failed in any way properly to focus the issues for their determination. There was no dispute that Shevonne Clarke struck the fatal blow. The appeal turned on the sole question whether the jury, properly directed as they were, were entitled to infer from the evidence that they accepted as credible and reliable that the appellant was criminally liable, art and part, with Shevonne Clarke for the murder of John Brankin.

[4] In full and careful reports, the trial judge set out the background facts, and it is sufficient to adopt his account, which was not challenged. Keith Connor's flat was at 2/4 Castleview House, 2 Craigour Place, Edinburgh. Castleview House was in a high rise block of flats in the Liberton area of the city. The flat was on the second floor of the building. John Brankin (aged 40) had been staying with Keith Connor in the days leading up to 1 August 2001. When Keith Connor gave evidence he explained that he had drunk to excess during 2001. He had allowed his flat to be used by his friends, with whom he engaged in "binge drinking". He stated that he and the deceased had spent most of the Sunday, Monday and Tuesday, prior to Wednesday 1 August 2001, drinking in the flat. They had continued doing so during the Wednesday. Photographs of the flat confirmed that much drink had been consumed.

[5] Keith Connor also admitted that teenagers, living in the area, had frequented his flat during the months prior to 1 August 2001. The appellant had been one of a number of teenagers, of both sexes, who had been in the flat. According to Keith Connor they had come about his flat to watch television. A police witness, DC Claire Brodie, gave evidence that around May/June 2001 the police had received an anonymous telephone call to the effect that Keith Connor had been inviting young girls up to his flat. The appellant's name had been mentioned as one of the girls involved. DC Brodie was instructed to investigate the allegation and spoke to the accused, who had made no complaints about Keith Connor. At that time the appellant told DC Brodie that she had been visiting Keith Connor's flat three times a week. Other police officers had subsequently spoken to Keith Connor about the complaint that the police had received.

[6] Prior to the events of 1 August 2001, all of the accused lived locally to Castleview House. The appellant lived with her parents and other members of her family, including her younger brother, Greg Reid. Clarke lived in a flat on the thirteenth floor of Moncrieffe House, which is another high rise block of flats in the locality.

[7] Around 2 pm on 2 August 2001 police officers arrived at 2/4 Castleview House, in response to a 999 call from a member of the public. Within the flat they found Keith Connor lying injured in the living room and the body of deceased in the kitchen. They discovered that entry to the flat had been forced and that the front door was ajar. The entry phone within the premises had been ripped out and damaged. No weapons were found within the flat.

[8] Keith Connor was removed by ambulance to the Royal Infirmary of Edinburgh, where he was detained. He was found to be suffering from a number of injuries, which could have been inflicted with a knife. He required emergency operative treatment. He was detained in hospital until 6 August 2001. It was not disputed, on behalf of either the appellant or Clarke, that Keith Connor had been assaulted during the course of the evening of 1 August 2001, to his severe injury, permanent disfigurement and to the danger of his life. Nor, for that matter, was it contended that, if a guilty verdict was to be returned in respect of Charge 4, the aggravation of attempted murder should be deleted from such a verdict. At post-mortem examination of the body of the deceased, it was determined that he had died as a consequence of a single stab wound to the front of the chest, slightly to the right of the midline. The nature of the wound was such that it had caused internal bleeding, which ultimately led to his death. No other knife wounds were found on his body. The deceased had, however, sustained a number of other injuries consistent with multiple blows to his head, right leg and right arm. The resulting bruises, lacerations and abrasions were consistent with the deceased having been assaulted with a blunt weapon, such as a piece of wood.

[9] The circumstances giving rise to the conviction of the appellant and Shevonne Clarke were as follows. In the early evening of Wednesday 1 August 2001, both girls were in Shevonne Clarke's flat on the thirteenth floor of Moncrieffe House. They were joined there by John Garden and Greg Reid. Prior to the arrival of the two boys, the appellant and Clarke had been drinking vodka. Once the four of them were together, there was some discussion about going down to the flat occupied by Kenneth Connor, in Castleview House, with a view to battering him. According to the evidence given by John Garden, it had been the appellant who had first mentioned Keith Connor's name and had said something to the effect that Keith Connor had "tried to fire into her". Garden understood from that comment that Keith Connor had tried to get off with the appellant. In any event the suggestion was made, probably by Clarke, that the four of them would go down to the flat and the other three agreed to do so. There was evidence that the accused was aware that another man by the name of "John", was likely to be in Keith Connor's flat. When the four left, they took with them a wooden batten which had been hanging on the wall of Clarke's flat. They were accompanied by Clarke's dog and one of the boys had a dog chain with him.

[10] When they arrived at the flat at 2/4 Castleview House, entry was forced and the four of them entered the livingroom of the flat. Keith Connor and John Brankin were sitting in the room. Connor was on a settee on one side of the room and Brankin on a chair on another side of the room. Both men were under the influence of drink. Both men were then assaulted. Connor was attacked by all four of the young people. One struck him repeatedly about the head and body with a batten. He was also punched and kicked. There was evidence before the jury that the appellant took part physically in this assault upon Keith Connor by striking him on the head with a telephone and kicking him about the head and body. Brankin was also attacked by being repeatedly punched and kicked and struck with a baton. There was no evidence that the appellant took part physically in that assault. She was convicted of involvement in that assault on the basis that she was acting art and part with the other three. She knew that "John" was liable to be in the flat and Brankin was obviously there when she entered the room and took part in the violence that occurred.

[11] Following upon this first incident the appellant and Clarke returned to Moncrieffe House. The two boys went off to the Reid family home. In Moncrieffe House the girls went to visit Marie Cole, who was a friend of Clarke and who stayed in a flat on the tenth floor of the building. When the appellant and Clarke arrived at Miss Cole's flat it was obvious to her that they had both been drinking. They talked about having been to Castleview House and having battered somebody there. There was reference to a man having been "a beast", who had tried to make a pass at the appellant. Something was said about a baseball bat having been used to batter the guy. The appellant then said that she wanted to go back down to the Castleview House flats, because she wanted to stab the guy. Clarke told her to forget it because they had already been down there and the man had had enough. The appellant kept repeating that she wished to stab the man. She and Clarke continued arguing about going back down to the flats and about whether the man deserved more that a battering. Clarke then said she would go down and do it. They both decided that they would go back down to the flats.

[12] Clarke then asked Miss Cole for a knife. She did so in the presence of the appellant. Miss Cole refused to give her one. Clarke then said she would get one from Emma Chalmers, another neighbour and friend. The appellant and Clarke then left.

[13] The jury heard evidence from which they could infer that Clarke then went to Emma Chalmers' flat, which was occupied by Steven Smith, Emma Chalmer's boyfriend, and that there she borrowed a kitchen knife.

[14] Footage from CCTV cameras positioned in Moncrieffe House, Castleview House and elsewhere demonstrated that between 10.20 pm and 10.35 pm the appellant and Clarke paid a second visit to Castleview House. When they arrived at Keith Connor's flat the two girls entered the livingroom. Clarke was carrying the kitchen knife in her hand. She attacked Keith Connor and struck repeated blows with the knife. She then attacked Brankin, whilst he was sitting in a chair, and struck the one blow which proved to be fatal. The girls then left.

[15] After the two girls left Keith Connor's flat, they returned to Marie Cole's flat, in Moncrieffe House. In the livingroom, Miss Cole saw Clarke bringing the handle of a knife out of the back of her trousers. Clarke then went into the kitchen and ran a tap. When she emerged from the kitchen, again she was carrying a knife, which was approximately one foot long. Both the appellant and Clarke spoke of what had happened at Castleview House. The appellant said something horrible had happened and that Clarke had stabbed the guy. Both of them spoke about the other man in the flat also having been stabbed.

[16] The appellant was interviewed by police officers on 3 August 2001. During that interview she admitted making the two visits to Keith Connor's flat. She denied taking any part in the physical assault upon either Keith Connor or the deceased during the first visit. Dealing with what happened during the first visit to Marie Cole's flat, the appellant admitted that she said that she hated Keith Connor and that she wanted him stabbed. She talked of Clarke leaving to get a knife and having seen the knife, before the pair of them had left Moncrieffe House by the back stairs, so that they would not get caught on the CCTV cameras with a knife. She went on to describe that they returned to Keith Connor's flat and spoke of Clarke having assaulted Keith Connor, after he had woken up, and having then stabbed the deceased in the stomach.

[17] The trial judge prepared the report, from which this background summary is taken, and a summary of evidence, without access to transcripts. He was asked to prepare a further report following the substituted grounds of appeal received on 12 December 2003. His report on the remaining ground of appeal was in these terms:

"In relation to Charge 5, the case for the Crown was that the fatal assault on the deceased, John Brankin, with a knife, was carried out by Clarke. It was argued that the appellant had been acting in concert with Clarke and that what had happened to the deceased fell within the reasonable contemplation of the appellant, at the time when she had returned to Keith Connor's flat with Clarke. In addressing the jury, the Advocate Depute argued that if it had been in the reasonable contemplation of the appellant that Keith Connor, a man the appellant hated and wanted to be stabbed, was going to be stabbed, then it had been also in the reasonable contemplation of the appellant that, as the two men in the flat had been assaulted on the earlier occasion, it was likely that the two men would be assaulted on the later occasion.

In addressing the jury the Advocate Depute founded, in particular, on (i) the history of events prior to 1 August 2001, which had involved the appellant visiting Keith Connor's flat, the police investigating the appellant's visits to the flat and the appellant having ceased visiting the flat, (ii) the appellant having expressed the view, before 1 August 2001, that Keith Connor was a pervert, (iii) the evidence relating to the first visit that the appellant and her three co-accused made to Keith Connor's flat on 1 August 2001, which took place after the appellant had indicated to her co-accused that both Keith Connor and the deceased would be there, (iv) the evidence the jury heard as to the purpose of that visit, which was to go down and fight with the two occupants of the flat, (v) the fact that on account of her presence during the first visit to Keith Connor's flat, the appellant was well aware that both Keith Connor and the deceased had been assaulted, whilst they had been in a drunken stupor and unable to offer any resistance, (vi) the evidence of Marie Cole as to what had been said by the appellant, and by Clarke, in the appellant's presence, when the appellant and Clarke had arrived at Marie Cole's flat, following their first visit to Keith Connor's flat, which had included the appellant stating that she wanted Keith Connor stabbed and that she wanted to go back down to Keith Connor's flat and stab him, because he was a beast, Clarke then saying, on more than one occasion, that she would stab him, Clarke then asking Marie Cole to give her a knife, and on that being refused, Clarke stating that she would get a knife from one of Marie Cole's neighbours, following upon which Clarke and the appellant left the flat, (vii) the fact that the appellant would have known that Keith Connor and the deceased were both likely to be in Keith Connor's flat, in a drunken stupor, when she and Clarke agreed to revisit Keith Connor's flat, (viii) the fact that when the appellant and Clarke left the block of flats, where Marie Cole stayed, the appellant knew that Clarke had a knife and intended to go to Keith Connor's flat and stab him, (ix) the CCTV evidence, (x) what the appellant had stated to the police, when interviewed under caution by PI Boal (Transcript - Crown Production 57), about her hating Keith Connor and wishing he got stabbed because she hated him (Pages 29 and 36), about Clarke leaving Marie Cole's flat to get a knife and obtaining a knife, which the appellant saw and could describe (Page 30), about the route the appellant and Clarke took in returning to Keith Connor's flat, in an effort to avoid being caught on the CCTV with the knife (Page 31), and about what had happened in Keith Connor's flat, after they had entered it on the second occasion (Page 38), (xi) the fact that when the appellant and Clarke reached Keith Connor's flat on the second occasion, the appellant had not stayed outside but had entered the flat with Clarke and (xii) Keith Connor's evidence that when Clarke entered his flat on the second occasion he saw that she had a knife in her hand, which he identified as being Crown Label 1. Crown Label 1 was a black handled kitchen knife, which had been recovered by the police from the flat in Moncrieffe House occupied by the Crown Witness Stephen Smith and his girlfriend Emma Chalmers."

[18] Miss Scott's submissions followed closely the terms of the ground of appeal already set out. She said that the case was rather unusual in respect that there was clear evidence of prior concert in respect of charge 5, in the form of an agreed plan to assault Keith Connor. She rehearsed the evidence, and emphasised those elements that bore on the central issues. She accepted that there was clear evidence of a concerted plan formed earlier in the day by the four young people to 'batter' Connor, motivated by some sort of sexual advance that he had made to the appellant. All four youths proceeded to Connor's flat and carried out that plan. There was evidence that Clarke had taken a lead, and that the boys had joined in. Garden gave evidence indicating that the appellant had entered the attack by striking Connor with a telephone and punching and kicking him. So far as Brankin was concerned, the evidence was that C Clarke attacked him, having turned from Connor with the words 'And you'. There was no suggestion that the appellant was involved physically in that assault. But it was accepted that there was evidence entitling the jury to convict of charges 1 and 2.

[19] On Miss Scott's approach, charges 4 and 5 then related to a later and distinct chapter. The discussions in Miss Cole's flat stemmed from the appellant's view that Connor had not been dealt with adequately and required further punishment. It was accepted that, in the light of Miss Cole's evidence, and the other circumstantial evidence available, the jury were entitled to hold that the appellant was guilty art and part of the assault on Connor. But that was as far as antecedent concert could be taken in this case. No legitimate inferences could be drawn from the incident earlier in the evening, which involved all four young people, and in particular no adverse inference could be drawn from the fact that Clarke had on that occasion proceeded to assault Brankin. The agreed plan for the second visit was precise in its scope. One could not infer that it was likely or reasonably foreseeable that the assault would extend beyond the intended victim, Connor, to include the murder of Brankin. It was irrelevant that there was an intention to cause very serious injury to Connor. The Crown did not suggest that there was a prior agreement to attack both men with a knife. The Crown relied on the prior incidents to invite the jury to infer that it was within the reasonable scope of what was likely that Brankin also would be assaulted. The mere fact that Brankin was assaulted on the first visit did not provide a basis for inference that, given the restricted scope of the agreement to return, the appellant knew or ought to have known that he would be attacked with a knife with murderous intent, and be murdered.

[20] In reply, the Advocate Depute submitted that there was ample evidence before the jury to warrant an inference that the murder of Brankin was within the scope of the common criminal purpose pursued by Clarke and the appellant, and that in any event an assault on Brankin with murderous intent was likely to happen. He relied on the background to the events as a whole. The appellant clearly knew that Brankin was likely to be at Connor's flat that day when the initial plan to 'batter' Connor was formed. The intention with which the four individuals set out was to batter 'them', according to evidence of Garden that the jury were entitled to accept. An assault on both men was within the initial contemplation of all four young people. After the initial assault, the evidence of discussions at Miss Cole's flat showed that the appellant was not content that the initial assault had been carried out to a sufficient extent. She was anxious to return and kill Connor. Again she knew that Brankin was likely to be present: he had been drunk and he had been seriously assaulted on the first visit. The jury would have been entitled to look at the whole events as episodes in a single criminal plan, notwithstanding that the two boys did not continue to play a part. It was clear that following on the discussions in Miss Cole's flat, the appellant and Clarke proceeded to procure a large knife and then to re-visit the flat and carry out the assaults in charges 4 and 5. It was open to the jury, looking at the evidence objectively, to hold that what occurred was foreseeable. Some factors were of particular importance. In the first episode, the incident had proceeded beyond assaulting the identified victim, the 'beast' Connor, to include Brankin. When the appellant and Clarke set out again it was a reasonable inference from the evidence as a whole that they had the same victims in mind. They knew both men would be in the flat. The likelihood of any incident progressing to the second man was high, and it was clearly open to the jury to infer that. One could not divorce the second incident from the first. They were inextricably linked.

[21] In our opinion there was ample evidence to justify the verdicts the jury arrived at in relation to charge 5. The jury were entitled to take the view that the whole events were partial manifestations of the working out of a single criminal purpose that had its origins in the decision to assault Connor as a 'beast' because of the advances he was said to have made to the appellant but which extended to Brankin, the "John" mentioned by the appellant. In relation to events after the initial incident, the evidence of Miss Cole was particularly telling. She described argument between the appellant and Clarke. The essence of the argument was that the appellant wanted to return to Connor's flat and to carry on the attack on Connor, and in particular to stab and to kill him. Clarke at first argued that they had battered him enough, and that it was stupid to return. The appellant persisted. And Clarke conceded. They left together to get a knife, and events then took their course. It was open to the jury to take the view that the criminal purpose had not changed. Focused as it was on the punishment of Connor, it had already proved to be sufficiently wide to encompass an assault on Brankin. And the return to Connor's flat could readily be seen to be a continuation of the original purpose to exact retribution. Having regard to the earlier treatment of Brankin, the jury was entitled to hold that he was still within the scope of a single plan.

[22] Alternatively, treating the two incidents as separate, with the second, murderous attack having its origins in a distinct agreement, reached between the appellant and Clarke in Miss Cole's flat, in which Connor was the sole intended victim identified, the same result is arrived at. The first incident demonstrated clearly that an intention to assault Connor was likely to extend to include Brankin if Clarke was involved as actor. It was Clarke, on the evidence, who had extended the initial physical attack to include Brankin. The jury could properly conclude that in a renewed assault in which Clarke was intended to be the active participant, it was highly likely that the violence would extend to both victims, in their helpless state.

[23] Counsel referred to McKinnon v HM Advocate 2003 SCCR 224 for statements of the general law on criminal liability art and part. At paragraph [11] of his opinion the Lord Justice General (Cullen) quotes Hume as follows:

"In all that has been said this limitation is plainly implied, That to effect all concerned, the homicide must be done in pursuance of the common enterprise. For if the killer strike on some accidental and peculiar quarrel of his own, nowise connected with or subservient to the original design; or, though it be in some sort connected with that design, if a resolution of the whole party to accomplish their object by such extreme means cannot reasonably be inferred in the whole circumstances of the case, certainly all the reasons fail for which, by the construction of the law, the act of one may be carried over into the persons of his associates..."

The Lord Justice General proceeded to comment on the effect of this passage in relation to homicide carried out in prosecution of another felony. The present case does not fall easily into the category of cases in which murder is committed in furtherance of, say, a housebreaking. Rather it is of the nature of a case in which a murder is proceeding, and another becomes involved, becoming an additional victim of the initial perpetrators. It would be a matter of circumstances whether liability for a second killing extended to all of the participants in what must be taken, ex hypothesi, to have been an initial criminal purpose of limited scope. One test would be Hume's: whether the second incident was some accidental and peculiar quarrel nowise connected with or subservient to the original design. It would be a matter for the jury to conclude on the evidence whether the extended assault was of that nature. So it was, in this case, wholly for the jury to decide what inferences fell to be drawn from the evidence they accepted.

[24] In our opinion, the jury had ample evidence to support the inference that the appellant was party to a common criminal purpose that was likely, indeed highly likely, to extend to include Brankin if, as anticipated, he were found drunk and incapable in Connor's flat, when the attack on Connor was resumed by the appellant and Clarke.

[25] Accordingly, whether one takes the view that there was one continuing criminal purpose reflected in two successive incidents, or two separate criminal enterprises, there was a basis in evidence on which the jury could properly conclude that the appellant was guilty art and part with Clarke of the murder of John Brankin. The appeal is refused.