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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Johnston
Lord Eassie
Lord MacLean
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[2006] HCJAC 89
Appeal No: XC88/06
OPINION OF THE COURT
delivered by LORD EASSIE
in
NOTE OF APPEAL AGAINST
CONVICTION
by
FELIX CHARLES McDONALD
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: Murray, Q.C.,
Nicholson; Balfour & Manson, SSC,
Edinburgh
Alt: S.F. Murphy, Q.C.,
A.D.; Crown Agent
6 December 2006
[1] On 12
January 2006
the appellant was convicted, after trial, in the High Court of Justiciary
sitting at Glasgow of the culpable homicide of Paul
Johnstone. He was charged, along with a
co-accused, Andrew Ian Brown, but during the course of the trial the co-accused
absconded. The charge of which the
appellant was found guilty libelled that on 1 January 2005 at 79 Canmore Road, Glenrothes, Fife the appellant and the co-accused:
"did assault Paul Johnstone, residing
there, and seize him, force him into the living room there, repeatedly punch
and kick him on the head and body, repeatedly stamp on his head and body, force
him to write a note of apology, cause him to fall from a third floor window
there to the ground and he was so severely injured that he died ... ".
[2] It is not in
dispute that the appellant and the co-accused, Brown, did assault Paul
Johnstone in the manner described in the charge. The issue in this appeal may be broadly
stated as whether there was sufficient evidence to allow a jury to conclude
that Mr. Johnstone's death was caused by the appellant's participation, jointly
with Brown, in the assault upon Mr. Johnstone.
The motion made by counsel for the appellant at the hearing of the
appeal was accordingly that the verdict of culpable homicide should be quashed
and a verdict of assault substituted in its place.
[3] As is
explained in the report by the trial judge, the background to the assault by
the appellant and Brown on Mr. Johnstone revealed in the evidence was that on 31 December
2004 Mr.
Johnstone had assaulted Melanie Wright with whom he had been in a somewhat
turbulent relationship. In the early
hours of 1 January 2005 Ms. Wright was drinking with,
among others, the appellant and the co-accused, Brown. On learning of the assault on Ms. Wright the
co-accused declared that he would "batter" Johnstone for his having done
so. The appellant, a friend of Brown,
chose to accompany Brown to Mr. Johnstone's flat on the mission to give the
"battering" to Mr. Johnstone. According
to what the appellant said later to the police, he did so to make sure "that
Andy was alright"; he joined in the
fight; both he and Brown punched and
kicked Mr. Johnstone in his living room and in the kitchen; and they left him in a bad way on the floor
of his living room with black eyes and cuts to his head after they had got him
to write a letter of apology to Ms. Wright.
[4] When Brown
and the appellant left Mr. Johnstone's flat after their conjoined assault on
him, the flat door was locked and the key removed. According to what the appellant said to the
police, Brown locked the door and took the key.
The appellant told the police that he had not actually seen Brown lock
the door and take the key but Brown told him of that fact "when we went up the
road" which, in context, is on leaving Mr. Johnstone's flat and proceeding to
the appellant's flat at 58 Alexander Rise, Glenrothes. The appellant and the co-accused stole
various items from Mr. Johnstone's flat following the assault upon him and
these were taken with them to the appellant's flat. The key to the flat door of Mr. Johnstone's
flat was subsequently found by the police in the appellant's flat but since
both delinquents went to the appellant's flat after the assault on Mr.
Johnstone, the significance of that finding is neutral as respects the time of
acquisition by the appellant of knowledge that the door to Mr. Johnstone's
flat had been locked.
[5] There was
evidence from some of those present in the appellant's flat on the return of
the appellant and Brown, that the footwear of both was bloodstained. Both admitted that they had taken part in an
assault on Paul Johnstone. At a later
stage in the morning of 1 January 2005 the appellant and Brown went to the
house of one Shaun Earlie, still with bloodstained footwear. The appellant's brother, Mark McDonald, was
present and when he enquired as to what had happened the appellant said that
they had given Paul Johnstone a beating.
The report of the trial judge continues:
"When asked if it was a bad beating,
Mr. Brown said yes, he thought it was attempted murder and the appellant said
yes, it might be murder. The appellant
told Mark McDonald that they had locked him in his house."
[6] The
photographs and video recording of the interior of the flat of Mr. Johnstone
which were taken by a scenes of crime officer are reported by the trial judge
as revealing
"signs of considerable disturbance in
the living room and kitchen of Mr. Johnstone's flat. There were bloodstains on the furniture,
carpet, TV, radiator, ashtray and wastepaper bucket and also on the ceiling in
the living room. In the kitchen there
were signs of a significant disturbance with bloodstains on the doorframe, on
the walls and the floor, on the fridge and on certain moveable items, including
a bottle, a glass and also a cup from which it appeared that Mr. Johnstone had
drunk after the fight."
[7] However, as
is apparent from the terms of the indictment Mr. Johnstone did not die in his
flat by reason only of the injuries sustained in the assault upon him. His death occurred after he had fallen to the
ground from the kitchen window of his flat.
[8] The
deceased's third floor flat was at the gable end of a block of flats and the
kitchen window was in the gable wall.
The lower edge of the deceased's kitchen window was some 32 feet above
ground level but was 5 foot 1 inch above the top lintel of the kitchen window
of the flat below (the second floor flat).
That top lintel protruded horizontally to some extent. The evidence relating to the deceased having
left by his kitchen window is narrated by the trial judge in his Report in
these terms:
"It was clear that Mr Johnstone had
chosen to climb out of his kitchen window.
There were no signs of significant disturbance of glass objects on the
ledge in front of the window which one would have expected if he had been
resisting an attempt to eject him. A
fingerprint in blood on the interior face of the bottom frame of the window
belonged to him and was consistent with his climbing out of the window or holding
on to the frame while standing on the top lintel of the second floor window
which was five feet and one inch below.
The Crown fingerprint expert, Peter Marjoram, agreed that the
fingerprint was consistent with a person being outside the window. Allan Boyle, a fingerprint expert called by
the defence, opined that the print was consistent with a light grip on the
frame and suggested that it may have been placed there as he was climbing out
of the window. The top lintel of the
second floor window, which was made of a thin slab of concrete, had broken and
broken pieces of it were found close to where Mr Johnstone was found
lying. The pieces of the lintel looked
as if they had been broken recently as the surfaces which had not been exposed
to the elements when in situ looked
clean. PC Robert Christie, who attended
the scene on the morning of 1 January
2005, said that it was obvious that the broken pieces of the
lintel on the ground had fallen there recently.
Dr Sadler, who conducted the post
mortem examination, explained that he and Professor Pounder had found
abrasions on the left side of Mr Johnstone's chest and on his left forearm
that were consistent with his losing his manual grip on the window frame,
rotating and abrading his body against the wall as he fell. There was a large downpipe located close to
the kitchen window and it was possible that Mr Johnstone was seeking to move
along the lintel to reach it when he fell.
From this evidence it was open to the jury to conclude that after the
assault Mr Johnstone had decided to exit his flat by climbing out of the window
with the intention of descending by the downpipe but that the second floor
lintel broke under his weight causing him to fall thirty-two feet to the
ground."
Counsel for the appellant took no issue with this narration or
the conclusion which the trial judge regards as being open to the jury.
[9] There was
evidence from a CCTV system installed in a shopping centre some 150 yards from
Mr. Johnstone's flat which showed the appellant and his co-accused arriving
there at 0518 hours on 1 January 2005 carrying bags, presumably containing
the items removed from Mr. Johnstone's flat.
There was also evidence from a number of nearby residents of their
having heard a scream immediately followed by a loud thud. Unsurprisingly, their respective estimates or
recollections as to the time at which they heard that combination and sequence
of sounds varied to some extent. Details
of these variations are given by the trial judge in his Report but the conclusion
which he draws - and which was not in dispute - is that the appellant and the
co-accused left Mr. Johnstone's flat at some time between 5 minutes and 30
minutes before Mr. Johnstone fell from his kitchen window.
[10] Mr. Johnstone
was not discovered until some 5 hours or so after his fall, when his body was
observed by a passer-by who called the police and an ambulance. Mr. Johnstone died later in the
afternoon of 1 January 2005 in hospital. The pathologists who carried out the autopsy
were agreed that the deceased would have survived the injuries sustained in the
assault but were of differing views as to whether Mr. Johnstone would have
survived both the injuries sustained in the assault and the injuries sustained
in the fall had he not developed hypothermia as a result of lying in the open
for some hours on that January morning.
The difference of opinion is, however, not material to the issues in
this appeal. The post-mortem
investigations established that the deceased had consumed a considerable
quantity of amphetamine. He was,
however, a drug addict. One of the
pathologists (Professor Pounder) expressed the view that as a result of the
head injury sustained in the assault, Mr. Johnstone might have suffered
initial confusion.
[11] In his charge
to the jury the trial judge gave very full and careful directions on what was
required to establish a causal link between the unlawful act and the death of
the victim before a verdict of culpable homicide might be returned. Since no criticism is made by counsel for the
appellant of the trial judge's directions on causation, it is unnecessary to
set out these directions at length. Put
shortly, the trial judge instructed the jury that they required, first, to be satisfied
that "but for" the assault on him the victim would not have died. However, the "but for" test was only the
initial test and the jury then had to consider whether the unlawful act was a
direct or indirect cause. As he put it,
some acts may pass the "but for" test but be considered too remote in time or
other circumstances to be direct causes and would thus fail to satisfy the
causal link. If there were a direct
causal link, it would not matter that the assailant might not reasonably have
foreseen that death would result or how it would occur; but if the victim of the assault reacted in a
wholly unforeseeable or unreasonable way that would mean that the attack would
cease to be a direct cause of the death and thus the requisite causal link
would not be established.
[12] In opening his
presentation of the appeal, counsel for the appellant indicated that whatever
debate there might be respecting whether the appropriate causation test
included foreseeability, his submission did not hinge on that issue and he was
happy to advance it on either view.
Mirroring the no case to answer submission which had been advanced at
trial, his leading submission was that there was insufficient evidence to allow
the jury to conclude that, in the appellant's case, the necessary causal link
could be established.
[13] In advancing
this submission counsel focused first on the question whether the Crown had
proved prior complicity by the appellant in the locking of the victim of the
assault in his flat after the assault upon him had been committed. The evidence relating to the appellant's
knowledge of the locking of the door came principally from what was said by the
appellant in the course of his second police interview in which the appellant
stated that the co-accused had locked the door but denied seeing the co-accused
do so. While the statement to the police
went on to say that the co-accused had told him that he had locked the door
"when we went up the road", that was after the actual moment of locking up the
door. Similarly, the remark to the
appellant's brother that "they" had locked Mr. Johnstone in his house was
consistent with the appellant's having learned of the locking of the door as he
and the co-accused proceeded "up the road".
While the key was recovered in the appellant's house, that had no significance
in this context since both the co-accused and the appellant had gone to the
appellant's house after their assault on Mr. Johnstone. The trial judge therefore erred in telling
the jury that it was open to them to treat the locking of the door as part of
the common purpose. Moreover, the
absence of any bloodstains on or near the entry door to Mr. Johnstone's flat
meant that there was no positive evidence that Mr. Johnstone knew he had been
locked in his flat and for that reason chose to leave by means of the window.
[14] Putting
matters more generally, counsel submitted that, in the absence of evidence that
Mr. Johnstone knew he had been locked in his flat, one simply had the evidence
that Mr. Johnstone had chosen to climb out of his kitchen window. That was an instance of unreasonable
conduct. Under reference to McKew v Holland & Hannon & Cubitts (Scotland) Limited 1970 SC (HL) 20 and Malcolm v Dickson 1951 S.C. 542 it was submitted
that unreasonable conduct, which could not be foreseen, was not part of direct
and natural causation.
[15] Counsel for
the appellant then referred to Broadley
v H.M. Advocate 2005 SCCR 620,
the evidence and argument in which were, said counsel, largely equivalent to
the present case. In the former case the
Crown evoked some 15 adminicles of evidence but the court, on appeal, found
that evidence to be insufficient to hold the appellant in that case responsible
for the death of the alleged victim by reason of her falling from the window
there in question.
[16] In response to
the motion advanced by counsel for the appellant, and in inviting refusal of
the appeal, the advocate depute began by distinguishing Broadley v H.M. Advocate. The facts in that case were materially
different. There was a very significant
time gap (over 24 hours) between the acts alleged to have been committed by the
accused in that case and the deceased's action in climbing out of the
window; and there was no evidence of the
accused having even been in the room at or shortly before the fall from the
window. By contrast, in the present case
Mr. Johnstone had been seriously assaulted by the appellant and his co-accused
within a very short period before he fell from the window.
[17] The advocate
depute went on to submit that the central question was whether there was
evidential material sufficient for the jury to reach the conclusion that the
deceased left via his kitchen window in response to the attack upon him. Climbing out of such a kitchen window was not
normal; but special circumstances may
make such an exit rational to the person affected by those circumstances. The deceased had no access to a landline or a
mobile telephone (with which state of facts counsel for the appellant indicated
his agreement) but he could have summoned help in other ways, such as banging
on the windows. Importantly, there was
much evidential support for the view that Mr. Johnstone was attempting to make
a careful escape via the kitchen window.
The glass articles on the interior ledge were undisturbed; there was the evidence of his possibly trying
to reach the downpipe and the breaking of the lintel of the window of the flat
below; and there was the scream. There was nothing to support the possibility
that Mr. Johnstone was committing suicide and the evidence of his means of exit,
the breaking of the lintel and the scream were in broad terms inconsistent with
a suicidal jump from the window. It was
accordingly open to the jury readily to infer that Mr. Johnstone was trying to
escape. And once one draws that inference,
the further inference can be drawn that the attempt to escape was prompted by
the attack. As to the precise thinking
of the deceased it was possible to envisage a limited number of scenarios. One scenario might be that, being confused in
the manner spoken to by Professor Pounder, and wishing help for his injuries,
the deceased took the course which he did.
Another might be that Mr. Johnstone feared that his attackers were still
in the flat, or lurking outside the door.
A third scenario was that he had indeed realised that he was locked in,
albeit that there were no bloodstains in the hall and, given the extent of
Mr. Johnstone's injuries, it was perhaps not unreasonable to expect that
there would be some such stains were the deceased to have tried to open his
front door. But all scenarios, and no
other realistic scenario had been suggested, went back to the fact that the
deceased had been assaulted very shortly before his fall from the window. The trial judge was therefore correct to say
to the jury that it was not essential for the Crown to prove that the deceased
knew the door to his flat to have been locked.
[18] We consider
that there is force in the submissions advanced on behalf of the Crown and,
accordingly, we have come to the conclusion that there was sufficient evidence
in the case to allow the issue whether the death of Mr. Johnstone was caused by
the attack on him to be determined by the jury.
It is important at the outset to bear in mind the short interval of time
between the conclusion of the attack and the deceased's fall from the kitchen
window. As already mentioned, that
interval was not more than 30 minutes and could well have been as few as 5
minutes. In that, and other respects,
the facts of this case differ significantly from those which obtained in the
case of Broadley v H.M. Advocate. Next, we consider that the real evidence
relating to Mr. Johnstone's leaving by the window does indeed allow the
inference to be drawn that in doing so he was executing an escape. That real evidence includes the fact that the
articles on the window ledge were not disturbed; the location of the fingerprint of the
deceased found on the window frame, as interpreted by the fingerprint experts; the fracturing of the lintel of the inferior
kitchen window; the abrasions to the
left side of Mr. Johnston's chest and his left forearm which the pathologists
described as being consistent with his losing his grip on the window frame; and finally, the scream which was heard by
the eye-witnesses. Although suicide was
canvassed as a possibility in some of the questions put by counsel for the
appellant at the trial, it was not suggested to us in this appeal that there
was any material which could support the view that Mr. Johnstone left his
window in order to commit suicide. Given
the inference from that body of evidence that Mr. Johnstone was trying to
escape via his window and the short interval of time between the attack and
that attempt it is not difficult legitimately to infer a relationship between the
former and the latter. The advocate
depute suggested a number of scenarios, all of which led back to the
assault. No other unconnected scenario
was seriously suggested. It was not, in
our view, necessary for the Crown to prove the precise mental processes (or
confusion therein) which led Mr. Johnstone to react to the assault or
hamesucken in the way in which he did.
[19] As the
advocate depute explained, it was not essential to the Crown case that they
satisfy the jury that the deceased knew that he had been locked in his
flat. The trial judge pointed out to the
jury there was also the evidence that no blood from the deceased was found in
his hall or on the interior surface of the flat entry door, which might support
the inference that the deceased did not go to his front door after the assault
and, accordingly, that might give rise to a question whether the deceased knew
the door to have been locked.
[20] Since the
locking of the door was not a crucial part of the Crown case the trial judge's
direction that it was open to the jury to conclude that the act by Andrew Brown
of locking the door was something which might be included in the common
criminal purpose loses some significance.
However, we are not persuaded that it was in the circumstances a misdirection. It is not every detail of what may occur in
the execution of a common criminal purpose which has to be foreseen. Where two or more people embark upon a common
criminal purpose they are normally responsible for what happens in the course
of the execution of that purpose. It is
the unexpected and unforeseen, going clearly outwith the parameters of the
joint purpose, for which joint art and part responsibility is elided. There is nothing in the evidence to which we
have been referred which would suggest that the locking of the door of
Mr. Johnstone's flat was something which was unforeseen by the
appellant. Nothing which he did or said
afterwards indicates any surprise by the appellant that the co-accused had
turned the key and removed it. Indeed,
the appellant appears to have associated himself with those actions. We accordingly consider that the trial judge
was not in error in indicating to the jury that the locking in of the deceased could
be treated as an incidental part of the joint common purpose for which the
appellant required to bear such responsibility as might flow therefrom, on an
art and part basis.
[21] In these
circumstances we consider that it has not been demonstrated to us that a
miscarriage of justice has occurred and the appeal is accordingly refused.
