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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Nimmo Smith

Lord Kingarth

Lord Mackay of Drumadoon

[2008] HCJAC 45

Appeal Nos: XC614/05 and XC602/05

OPINION OF THE COURT

delivered by LORD NIMMO SMITH

APPEALS AGAINST CONVICTION

MARK KELBIE

First Appellant;

and

THOMAS TAMS

Second Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent.

Act: Shead, McKenzie; Belmonte & Co

Act: Gilchrist, QC; Beaumont & Co

Alt: Prentice, AD; Crown Agent

21 August 2008

Introduction

[1] The first named appellant, Mark Kelbie ("Kelbie"), and the second named appellant, Thomas Tams ("Tams"), have both appealed against their conviction at a sitting of the High Court in Edinburgh on 6 July 2005 of a charge of attempted murder. That charge was charge 3 in the indictment and was in the following terms:

"[O]n 6 February 2005 at 30 Niddrie Marischal Gardens, Edinburgh, you ... did whilst acting along with another assault John Rush ["Rush"], c/o Lothian & Borders Police, Edinburgh and repeatedly strike him on the head and body with a wooden implement, repeatedly punch him on the head and body all to his severe injury, permanent impairment, permanent disfigurement and to the danger of his life and did attempt to murder him".

Kelbie was in addition convicted of a bail aggravation.

[2] We shall call the person referred to as "another" in the charge as JM. The intention of the Crown had originally been to bring JM to trial on the same indictment, but there was a defect in the service of the indictment upon him and it was not possible to proceed to trial against him at the same time as the trial of the appellants. We understand that proceedings against JM have not yet been concluded, hence the need for anonymisation.

[3] In addition to the charge of which they were convicted, the appellants also faced two charges alleging that on the same date and at the same address they, whilst acting along with another, (1) assaulted William McKenzie Ross ("Ross") by repeatedly striking him on the head and body with a piece of wood or similar instrument to his severe injury, and (2) assaulted David McDonald Cairns ("Cairns") by repeatedly striking him with a piece of wood or similar instrument to his severe injury and permanent disfigurement. As with charge 3, the other person referred to in charges 1 and 2 was JM. At the close of the Crown case the trial judge sustained submissions of no case to answer in respect of these two charges and both appellants were accordingly acquitted of them.

The circumstances of the offence
[4] It was not in dispute that the evidence led at the trial was sufficient to establish that Rush was the victim of a serious assault on the date and at the address libelled in charge 3. After being assaulted he was taken to Edinburgh Royal Infirmary, and was transferred from there to the Western General Hospital, Edinburgh.

[5] Evidence was given by a consultant anaesthetist and intensive care consultant at the Western General Hospital, who was in the team which had cared for Rush in the intensive care unit. He had been found unconscious with a Glasgow Coma Score of 3 indicating that he was deeply unconscious. Externally there were marks all over his head. He had cuts above and below his eye, abrasions to the left parietal region, swelling behind the left and right mastoid bone, on the right temple and on the right mandible and he had a swollen arm. A CT scan showed a large right subdural haematoma and swelling across the brain. This was a substantial primary brain injury which was life threatening. He also had an injury to the left side of the brain consistent with the abrasions on the left side of his head. The fractures of the right and left mastoid bones would have required separate impact injuries. He also had a fracture of the right mandible and his teeth had been knocked out. He had a cut on his lip and below his chin to the right. He had a fracture of the ulna consistent with a single blow. There was bruising to his right shoulder. His injuries were indicative of blunt blows to the front and the back of his head, his right shoulder and his left forearm. They were not consistent with a single fall. The witness was still involved in the care of the patient. His condition was very poor. He was in a vegetative state and the prognosis was poor. There was still a risk that he could die from his injuries. Obviously, he was unfit to give any statement following the assault or to give evidence at the trial.

[6] Professor Busuttil, who had reviewed the medical records, gave expert evidence about the cause of these injuries. In his opinion, it was most likely that Rush had been struck a number of times with a blunt instrument. There had been at least three impacts to the top of his head and two to the lower part of his head. The witness did not think it very likely that the injuries had been inflicted by punches, although this was a possibility if the assailant was a trained boxer (as Kelbie was). He rejected the possibility that Rush had been punched and had then been injured by falling against a table: this could have caused some of the injuries, but could not have produced the subdural haemorrhage.

[7] Evidence was led from a forensic scientist, Mahasweta Roy, about a number of bloodstains found within Rush's house. It could be inferred from these that Rush was assaulted in an upstairs bedroom. There were no bloodstains to suggest that he was assaulted in any other part of the house. She gave evidence that minute blood stains in the form of a spray can only travel about one metre before falling. Another forensic scientist, Juliet Riches, gave evidence that a small bloodstain on one of JM's shoes showed a positive reaction for blood, which yielded a partial match with Rush's DNA.

[8] One of the principal issues at the trial was therefore whether the Crown had succeeded on proving that each of the appellants was implicated in this assault and, if so, to what extent. By their verdict, the jury held it proved that each was implicated, while acting in concert, in the commission of an assault amounting to attempted murder.

The appeals to this court
[9] Both appellants have appealed against conviction on a number of grounds. The appeals were heard in two stages. In the first stage a differently constituted bench (the late Lord Macfadyen, Lord Nimmo Smith and Lord Kingarth) heard submissions on behalf of both appellants on a ground of appeal directed to a passage in the trial judge's charge to the jury which allegedly constituted a misdirection. This passage related to the need for the jury to distinguish what a witness was saying from his own recollection from what he was saying on the basis of hearsay. There were numerous passages in which two witnesses in particular (Wood and Robertson, referred to below) admitted saying certain things to the police, but claimed that they did so on the basis of hearsay. The direction related to the need for the jury to decide, in light of this, what parts of the evidence were based on a witness's own recollection and what parts were based on hearsay, before proceeding, in the case of the former, to decide whether or not to accept that evidence. On 12 June 2007, having considered the submissions of counsel, the court held that the passage in question, when read in the context of the trial judge's charge as a whole, did not constitute any misdirection and accordingly refused the appeals to that extent. No opinion was issued.

[10] In these circumstances, we proceed on the basis that the trial judge's charge contained full and accurate directions to the jury about what did and did not constitute evidence and how they should approach the evidence of each witness.

[11] The remaining grounds of appeal can be stated succinctly, to the following effect:

(1) Each appellant argues that there was insufficient evidence in law to
entitle the jury to convict him of charge 3, and the trial judge accordingly erred in repelling the submission of no case to answer in respect of that charge;

(2) Each appellant also argues that in any event the nature of the evidence
was such that no reasonable jury, properly directed, could have convicted him and that the trial judge ought accordingly to have withdrawn the charge from the jury's consideration.

(3) In addition there is a ground of appeal for Tams to the effect that, if he
was involved in a concerted assault upon Rush, there was insufficient evidence to establish that he was party to a murderous attack, and ought therefore not to have been convicted of attempted murder.

[12] In these circumstances, it is appropriate that we give some account of the evidence relied upon by the Crown as implicating each of Kelbie and Tams in the assault on Rush, and of the view which the trial judge took of it in the context of the submissions of no case to answer in respect of charge 3.

Evidence implicating the appellants in the commission of the offence
[13] As will be seen, the principal evidence implicating Kelbie and Tams in the commission of the offence came from Kevin Wood ("Wood") and Derek Robertson ("Robertson"). The trial judge states in his report to this court that both of these witnesses were reluctant witnesses. In respect of each of them warnings about perjury and prevarication required to be given. Extensive reference was made in the evidence of each of them to statements made by him to the police. Each of them accepted in turn that he had said certain things to the police, and that they were true. Each also denied saying certain other things to the police. Each admitted saying certain other things to the police, but denied that they were true.

[14] The trial judge has provided a comprehensive summary of the evidence, which counsel for both appellants accepted was accurate except in one detail (which we notice below, at the end of paragraph [17]). Notwithstanding this, Mr Shead, on behalf of Kelbie, took us through a transcript of the evidence. This exercise served little purpose other than to confirm the accuracy of the trial judge's summary. What follows is therefore an adaptation of that summary, in particular those passages, relied on by the Crown, in which the witnesses either gave direct evidence or accepted that they had said particular things to the police and that they were true. (In the course of the hearing before us the expression that counsel used for the latter process was that the statements in question were "adopted". We do not need to decide whether that is the correct expression: what matters is that a witness who assents to the truth of a proposition relating to a matter of fact within his knowledge thereby makes that part of his evidence.)

Kevin Wood

[15] Wood's initial account in giving evidence was that on the night in question he was in his house at 30 Niddrie Marischal Gardens, Edinburgh with Robertson. They were upstairs in Wood's bedroom smoking heroin. Kelbie, Tams and JM were downstairs in the livingroom having a drink. Rush came to the house and came upstairs to the bedroom. Rush, Wood and Robertson were sitting in the bedroom talking for about half an hour. Thereafter Kelbie came into the bedroom and there was an argument between him and Rush followed by a scuffle between them. They were separated by others. Wood thought that Tams and JM came into the room and pulled Kelbie off Rush, and that Ross and Cairns were standing at the bedroom door. Wood had been aware that Ross and Cairns were also in his house because he had gone downstairs earlier and noticed them in the livingroom. After Kelbie was pulled away from Rush, he, Tams, Muldoon, Ross and Cairns all went downstairs, leaving Rush in the bedroom with Wood and Robertson. After some time, Kelbie came back into the bedroom and he and Rush started arguing again. There was a scuffle following which Rush fell to the ground and hit his head on a table as he fell. The scuffle had lasted about a couple of minutes. Wood maintained that only he and Robertson were in the room apart from Kelbie and Rush. He did not see anything in anybody's hand. Rush just fell and hit his head off the table. Wood telephoned for an ambulance. Kelbie left the room.

[16] When pressed about this account, Wood accepted that Rush was gravely injured and that he sustained his injuries in his house when was present. He admitted that he had given a number of statements to the police about what had happened and that he had signed the statements. He accepted that in one statement, which he gave on 8 February 2005 (Crown production 34), he told the police that on the first occasion Kelbie came into the room he punched Rush on the mouth and that was true. He confirmed that he told the police that Kelbie had a telephone in his hand and that was also true. He confirmed that he told them that Kelbie went up to Rush and slapped him on the face and that was true. He confirmed that he told the police that Rush tried to push Kelbie against a wall and that at that point Tams, Muldoon, Cairns and Ross came into the room and that was true. He confirmed that he told them that Ross and Cairns tried to separate the fight and that was true. After some prevarication on his part, he was shown the video recording of his interview and thereafter accepted that he told the police that Tams said "Gie him it" and that Tams as well as Kelbie punched Rush, and confirmed that was true.

[17] After further prevarication, and following a break, Wood confirmed that he did tell the police that thereafter Kelbie came back into the room followed by Tams and JM, and that was true. He accepted that he told the police that, as soon as they came up the stairs, they came bursting in and there was "an almighty rammy", and that was true. He maintained that he did not tell the police that as soon as he got into the room Kelbie hit Rush over the head a few times with a stick. Under reference to another earlier statement, which he had given on 6 February 2005 (Crown production 32), Wood admitted telling the police that as soon as they came upstairs they came bursting into the bedroom and that Kelbie had a big stick, three feet long, like a table leg, and they all set about Rush. Although he said these things to the police they were not true. He told the police that it was a frenzied attack but that was not true. He told the police that Kelbie set about Rush's head with the stick but it was not true. He told the police that Kelbie was like a madman on the loose but that was not true. He told the police that Kelbie stamped on the Rush's head but that was not true. He was unable to explain why he told these lies. Thereafter he stated that he could not remember saying that and could offer no explanation for initially saying that he did not say it. He finally accepted that he did say those words but maintained that it was not true. He accepted that he told the police that Kelbie hit Rush all over the body with the stick and that he was stamping on his head but maintained that was not true. He admitted telling the police that Rush was covered in blood and that was true. He admitted telling the police that Kelbie was saying to Rush "I've left you on your knees before", and confirmed that was true. (Although, as was submitted before us, it is perhaps not clear that Wood's reference to persons bursting into the room or to a "rammy" related to what might be called the second incident, we consider that it was open to the jury, as the trial judge also thought, to understand from the context that the witness was indeed referring to that incident. We do not, however, regard the answer to the question of the sufficiency of evidence against either appellant to be dependent on that.)

Derek Robertson

[18] Robertson was described by the trial judge as "extremely vague" at the commencement of his evidence. He identified Kelbie and Tams but stated that he did not know who had been in Wood's house apart from himself and Wood. Despite saying this, he confirmed that Rush came upstairs at a time when Robertson and Wood were in one of the bedrooms. Robertson had been taking crack cocaine and heroin. When Rush came upstairs Robertson had a chat with him. He testified that Rush left the bedroom and that was the last that Robertson saw of him until he heard something and then saw Rush who was covered in blood. Rush came back upstairs and fell back into the room that Robertson and Wood were in. This was no longer than five minutes after Rush had left the room. He had been coming upstairs and fell at the top step and he must have fallen into the bedroom. Robertson saw him fall. He was lying on the floor and Robertson helped him. He said that he did not see anyone else there.

[19] When asked about his prior statements to the police Robertson stated that he told the police that he did not know anything but they were not listening to him. He had been smoking crack cocaine for four days and did not know where he was. He told the police that he and Wood had a burn of heroin. Although he told the police that his memory was fine that was not true. He told the police that to get out of the police station. He was in a bad state and would have told the police anything to get out for more drugs.

[20] The witness confirmed, however, that he told the police that Rush came to the house, and that was true. Later in his evidence he confirmed that he told the police that Kelbie and Rush started to argue with each other and that was true. He said that there was a slight argument. He confirmed that Tams and JM came upstairs and that he told the police that "JM and Thomas were standing at the bedroom door on the stair landing." He confirmed that it was true. He confirmed that he told the police that at that time the argument seemed to get worse and that was true. He told the police that Kelbie punched Rush on the face but in evidence he said that he never saw that. He was referred to the following passage in one statement:

"At this point William Ross and Caiggs [Cairns] came up to the bedroom and came into the room. John was being attacked by Mark, Thomas and [JM]. William and Caiggs pulled the three of them out the way and got in front of John to shield him from their blows. It all calmed down. Mark, Thomas and JM walked out of the room and down the stairs into the livingroom. They were shouting at John, Caiggs and David."

In relation to that passage he confirmed that it was true that Cairns came up to the bedroom and into the room. He confirmed that he had told the police that Rush was being attacked by Kelbie, Tams and JM and that Ross and Cairns pulled the three of them out the way and got in front of Rush to shield him from their blows. His position in relation to that matter was that he was not sure if it was true. Thereafter he changed his position saying that it was not true. It was true that Kelbie, Tams and JM walked out of the room and downstairs, and that they were shouting. He confirmed that he told the police that Cairns closed the bedroom door as he left the room leaving "Woody, John and I [sic] in the room". That might be true but the witness could not remember. He confirmed that he told the police that Rush was fine and did not appear to be injured, but went into the upstairs toilet next to the bedroom to check if he was bleeding, and this was true.

[21] Robertson confirmed that he told the police that after this he heard banging, shouting, swearing and a lot of commotion downstairs and that was true. He admitted saying to the police "I could see the top of the banister at the top of the stairs," and it could be true. He confirmed that he said to the police:

"I then saw John, who had come from the bathroom. He was standing at the top of the stairs. He was looking downstairs, probably because the disturbance or commotion was still ongoing at this time."

He confirmed that this was true. It was true that John was looking downstairs. He admitted that he saw Tams at the top of the stairs, but said that he could not see anything in his hands. He accepted that Tams might have had something in his hands. In that regard he admitted saying to the police: "At this point I heard John shout 'Get that bat down, you little cunt'". When he told the police that, it was true. He admitted telling the police that Tams swung the bat at Rush, who was still on the landing, but testified that he had put that passage in because the police did not believe what he was telling them. He admitted hearing constant banging. He told the police the truth when he saw Kelbie and JM coming up the stairs behind Tams. He lied to the police when he told them that Tams swung something at Rush and when he told the police that Kelbie took the bat from Tams. He did not see Kelbie swinging a bat that night. He told the police that Rush could have been getting hit but he was unable to say that was the case. Whatever happened it happened very quickly. He claimed that the door was closed and he could not see who was attacking Rush. Rush fell into the room with his feet just inside the door. He pulled Rush further into the room and closed the door. Whoever had been at the top of the stairs had left. He confirmed that at that point Kelbie shouted to him and Wood "Get that cleaned up." He told the police that and it was true. Although he maintained that he never saw Rush being struck he confirmed that there was an assault upon him at the top of the stairs. There was a lot of banging and Rush fell backwards onto the floor of the bedroom. Robertson maintained that when Kelbie shouted "Get that cleaned up", he was not referring to blood: he did not know what he was referring to.

William Ross

[22] Ross said that on 5 February 2005 he had been in the company of Cairns and other people. At some point he was in the company of Rush. Later in the evening he was with Cairns and Rush and they ended up at Wood's house. When they arrived there he and Cairns went into the livingroom for a drink and Rush went upstairs. When he went into the livingroom there were about three or four people there whom he did not know. When he and Cairns were drinking they heard a disturbance upstairs. He and Cairns ran upstairs and went into a bedroom where Rush and "another guy were holding each other at arms' length". He got in between them and the other man ran downstairs. He and Cairns went downstairs. When they did so he noticed that the front door was open. He went into the livingroom. Nobody else was there. As he turned to go into the livingroom he felt a blow on the side of his chin and that was his last recollection. He regained consciousness. Cairns was lying on the livingroom floor opposite him. He was not moving. He tried to waken him. He managed to get him to his feet and took him to his house. Rush did not have any injuries when he last saw him. When he saw the injuries to Cairns he thought that it looked like he had been struck by a baseball bat.

David Cairns

[23] Cairns confirmed that he had been in the company of Ross and Rush and that they ended up at Wood's house. When he and the others went into the livingroom there were four other people there. He did not know them. They were sitting drinking. Cairns poured himself a drink. Rush went upstairs. After about 10 minutes he heard a skirmish upstairs. By then all four people from the livingroom, including Wood, had gone upstairs. When Cairns went upstairs everything had calmed down. The people from the livingroom other than Wood were coming downstairs. Cairns also went downstairs leaving Rush and Wood in the bedroom. At that point Rush did not appear to be injured. Cairns went back into the livingroom and was sitting finishing his drink when he was struck on the head and knocked out. He was helped to Ross's house from where he was taken by ambulance to hospital. He could not identify his attacker.

The trial judge's assessment of the evidence
[24] In his report to this court, the trial judge explains the basis on which he concluded that there was sufficient evidence in the Crown case, taken at its highest, to entitle the jury to convict each of Kelbie and Tams of charge 3, and accordingly repelled the submissions of no case to answer for each of them. It seemed to him that where a witness gave differing accounts in the course of his evidence it was for the jury to evaluate the evidence and to determine which version, if any, they accepted.

[25] There was no dispute that on the date libelled Kelbie, Tams and JM were in the livingroom of Wood's house when Ross, Cairns and Rush arrived there. It also seemed clear that Rush went upstairs to the bedroom leaving Ross and Cairns in the livingroom with the others. When Rush was in the bedroom Kelbie also went upstairs and there was an altercation between him and Rush, as a result of which there was a scuffle between them. Others intervened to separate them. Thereafter Kelbie, Tams and JM went downstairs followed by Ross and Cairns, again leaving Rush in the bedroom with Wood and Robertson. At that time despite the struggle between Rush and Kelbie, Rush was uninjured. When Ross and Cairns got downstairs Kelbie, Tams and JM had left the house and the door was open. At some point thereafter, Ross and Cairns were assaulted and rendered unconscious. Ross thought he had been hit by a baseball bat and Cairns's injuries were consistent with his having been struck with a piece of wood. Kelbie's house was about 800 metres away from the locus.

[26] Although he sustained submissions on behalf of Kelbie and Tams that there was no case to answer in respect of either charge 1 or charge 2, the trial judge took the view that the evidence in relation to these charges might still be relevant for the jury's consideration of charge 3. There was no evidence to identify the assailant or assailants in these charges but he considered that the jury could take into account the evidence of the sound of banging downstairs after the first incident.

[27] Wood confirmed that he told the police that after the first incident Kelbie came upstairs with the other two and he stated that was true. Although he told the police that he did not know who they were he did know: his evidence was that Kelbie was followed by Tams and JM. As soon as they came upstairs they came bursting into the room. At the end of the incident Rush was covered in blood and Kelbie said "I've left you on your knees before." Robertson confirmed that he told the police that when Rush came out of the bathroom he was standing at the top of the stairs looking downstairs, probably because of the disturbance or commotion, and that this was true. He saw Tams at the top of the stairs. He heard Rush shouting "Get that bat down, you little cunt". Thereafter he heard constant banging. He confirmed that Kelbie and JM came up the stairs behind Tams.

[28] The medical evidence and the forensic evidence confirmed that there had been a number of blows to cause the injuries to Rush. The blood patterns and location of the blood ruled out the explanation that he had fallen against the coffee table after having been punched. The jury could conclude that there had been blows to Rush when he was lying on the ground bleeding. There was a small particle of blood on JM's shoe which partially matched Rush's DNA. It must have been deposited there after being airborne and he must have been within a metre of the blood source when the blow was delivered. At the end of the incident, according to Robertson, Kelbie shouted "Get that cleaned up."

[29] It seemed to the trial judge that the jury were entitled to conclude that after the first incident Kelbie, Tams and JM left the house and returned shortly thereafter. When they returned Cairns and Ross were rendered unconscious. Thereafter Kelbie, Tams and JM went upstairs to the bedroom where Rush was assaulted. The blood spot on JM's shoe placed him in close proximity to the assault. According to Wood all three barged into the room. Robertson maintained that the assault occurred outside the bedroom, but that was clearly wrong. Nevertheless Robertson confirmed that all three of Kelbie, Tams and JM came up the stairs led by Tams. The jury could infer from the comment made by Rush that one of the three had a bat. Moreover, Ross's impression was that Cairns had been struck by something like a baseball bat, and the injuries on Rush were consistent with his having been struck by a piece of wood. In all the circumstances the jury could conclude that this was a concerted attack upon Rush involving the use of a wooden implement. Kelbie was identified by Wood as one of the three men who barged into the room prior to Rush sustaining injury. At the end of the incident he made the comment about leaving Rush on his knees before, from which the jury could infer an admission of his involvement in the assault upon him. Robertson spoke of the three men coming upstairs and Rush shouting to one of them to put the bat down. Robertson also said that at the end of the incident Kelbie shouted "Get that cleaned up", from which the jury might infer that he was the leader and giving instructions to clean up the evidence of bloodstaining.

[30] It seemed to the trial judge that, although the evidence was thin, there was a sufficiency to enable the jury to convict both Kelbie and Tams on the basis of their being involved in a concerted attack upon Rush. The jury were entitled to conclude that they and JM left the house after the first incident and returned shortly thereafter, when at least one of them was armed with a baseball bat or similar instrument. The contemplated use of a baseball bat or similar instrument might result in the victim being struck repeatedly about the head. If that occurred the jury might conclude that there was the necessary wicked recklessness for murder and that this was in the contemplation of those involved in the concerted attack.

Submissions for the appellants

Submissions for Kelbie

[31] On behalf of Kelbie Mr Shead, after taking us through the transcript of the evidence of Wood and Robertson, accepted that the evidence was sufficient to establish that Kelbie had punched Rush in the first incident. He submitted, however, that there was a fundamental discrepancy between Wood and Robertson about the place where the second, more serious incident occurred. Under reference to McDonald v Scott 1993 SCCR78, in particular at page 80, he submitted that there was a fundamental divergence between the accounts given by Wood and Robertson and accordingly that the evidence lacked the necessary conjunction of testimony to satisfy the essential test of sufficiency. The evidence of these witnesses could not realistically be reconciled. Counsel recognised that the jury was free to pick and choose in the evidence of each witness, but submitted that there must be a rational limit to that exercise.

[32] Counsel went on to submit that, even if there was a technical submission, the verdict was one which no reasonable jury could have returned. The evidence lacked the quality and character necessary to justify a conviction. Reference was made to the objective test set out in section 106 (3)(b) of the Criminal Procedure (Scotland) Act 1995 (as amended), and the discussion thereof in E v HM Advocate 2002 SCCR 341 at paragraphs [27]-[35]. In terms of the statute a miscarriage of justice may be based on "the jury's having returned a verdict which no reasonable jury, properly directed, could have returned." In the present case the task of the jury in deciding what was and what was not evidence was so great that this court was in fact better placed than the jury was to perform this task. When it was performed, it could be seen that the statutory test had been made out by the lack of conjunction of testimony and the distinct possibility that the jury might have placed reliance on passages from the evidence of both Wood and Robertson which did not truly constitute evidence.

Submissions for Tams

[33] On behalf of Tams, Mr Gilchrist adopted Mr Shead's submissions, but developed them in certain respects, under reference to passages in the evidence already summarised above. We see no need to provide a separate summary of Mr Gilchrist's submissions on this part of the case.

[34] Mr Gilchrist also addressed us on what he described as his "fall-back position", that is to say, if there was sufficient evidence to implicate Tams in a concerted attack on Rush, there was nevertheless insufficient evidence to support a conviction for attempted murder. He recognised that participation in a concerted attack involving the use of weapons could involve the mens rea sufficient for attempted murder, but that depended on the circumstances of the particular case. Counsel did not seek to challenge the decision in McKinnon v HM Advocate 2003 SCCR 224, but submitted that such cases were fact-specific. In the present case, whatever happened downstairs before the second incident was so different from what then happened upstairs that it could not be said attempted murder could be part of the common purpose of the participants. The second incident was of a different order of magnitude from what had gone before.

Submissions for the Crown
[35] The Advocate depute accepted that the evidence of Wood and Robertson was pivotal to the Crown case. The jury had to consider which parts of their evidence they accepted and which they rejected. It was open to the jury to conclude that there were three episodes in a single course of conduct: (1) the first incident in the bedroom involving Rush, when Kelbie, Tams and JM were present; (2) an episode in the livingroom, involving Ross and Cairns; and (3) a second incident in the bedroom, in which the assault on Rush constituted attempted murder. It was presented by the Crown as a case of concert, the proper approach to which was to be found in McKinnon v HM Advocate. The nature and scope of a common criminal purpose should be discerned on an objective basis. An accused might be convicted of art and part involvement in an attempted murder if he actively associated himself with a common criminal purpose which carried the obvious risk that human life might be taken. Reference was also made to Black v HM Advocate 2006 SCCR 103. The participants in a common criminal purpose might directly associate themselves in various ways: Hume, Commentaries on the Law of Scotland Respecting Crimes, i, 264.

[36] The Advocate depute proceeded on the basis that the Crown case was that Kelbie was the actor in the first incident and in the use of a wooden implement in the second incident. Tams was involved in the first incident, saying "Gie him it" and also, according to Wood's evidence, punching Rush. Kelbie, Tams and JM left together. After an interval, they returned together with a weapon. The jury were entitled to conclude that a weapon was used, firstly from the circumstances of the episode downstairs involving Ross and Cairns, and secondly from the nature of the injuries to Rush. All three must have known that such an implement was used in the episode downstairs, and that one of their number was prepared to use it. There was evidence that all three then went upstairs. Rush was heard to say "Get that bat down, you little cunt", and this formed part of the res gestae. The jury could conclude from this that one of the participants still had a wooden implement and that this could be seen by the others. There was no doubt that Rush received a savage beating with a blunt instrument. There was evidence that Kelbie said to Rush "I've left you on your knees before", and that Kelbie shouted to Robertson and Wood "Get that cleaned up", which could be taken as referring to Rush's blood. Kelbie, Tams and JM then left together, as in Halliday v HM Advocate 1998 SCCR 509, which served to cast light on the attitude of the participants at the time of the attack and attempting to show that they had been wickedly indifferent to its consequences.

[37] On the evidence as a whole there was plainly sufficient for the jury to be entitled to conclude that the appellants were participants in a common criminal purpose which objectively viewed carried the obvious risk of serious harm to Rush. It could not be said that no reasonable jury properly charged could have reached that conclusion. E v HM Advocate was a very special case: see Holland v HM Advocate 2003 SCCR 616, at paragraph 53. In the present case the Crown evidence did not display the "extraordinary weaknesses" of that in E v HM Advocate. While there were contradictions in the evidence, it remained open to the jury to pick and choose and to decide what evidence to accept and what evidence to reject: see King v HM Advocate 1999 SCCR 330.

Discussion

[38] Although the Crown case was that Kelbie was the actor in the use of a wooden implement to assault Rush in the second incident, we do not regard it as essential for present purposes to consider whether or not that was case. The appeals were conducted on the basis that a wooden implement was indeed used on Rush, and there were indeed passages in the evidence from which it might be concluded that, if Kelbie was involved, it was he who wielded the implement. But this was a case of alleged concert, in which, if the evidence was sufficient to establish that there was a common criminal purpose, and its nature and scope extended to attempted murder, each of the participants could be found guilty on an art and part basis, without it necessarily being established what part each of them played as actor.

[39] We are assisted in this view by considering, in the first place, the passage in Hume relied on by the Advocate depute:

"One thing is plainly reasonable, and is allowed by all authorities: That if a number conspire and lie in wait, to kill a certain person, ... it signifies nothing who gives the mortal blow, or how few blows are given. Though but one of the parties strike, and dispatch with one blow of a lethal weapon, he is not therefore the one actor on the occasion, but executioner, for all of them, of their common resolution: Properly speaking, he is their instrument with which they strike, and they by their presence are consenting, aiding, and abetting to him in all he does; having all come hither on purpose to have it done, and being ready to lend their aid, if need shall be. Their presence on the occasion is substantially an assistance. It adds to the terror and the danger of the person attacked, who, in the case of an assault by one only, not supported by the attendance of others, might happen successfully to defend himself; as on the other side the invader is heartened in the enterprise, by his knowledge of the force which is at hand to sustain him."

[40] We also bear in mind that, as was decided in McKinnon v HM Advocate, an accused is guilty of murder art and part where, first, by his conduct - for example, his words or actions - he actively associates himself with a common criminal purpose which is or includes that taking of human life or carries the obvious risk that human life will be taken and, secondly, in the carrying out of that purpose murder is committed by someone else. It is for the Crown to prove in relation to each individual accused, inter alia, that there was a purpose of that character and scope and that the particular accused associated himself with that purpose. Where he is not proved to have associated himself with that purpose or is proved to have participated in some less serious common criminal purpose in the course of which the victim dies, the accused may be guilty art and part of culpable homicide, whether or not any other person is proved guilty of murder. The same considerations apply, mutatis mutandis, to a charge of attempted murder.

[41] It was also held in McKinnon that it is for the jury to decide whether a person who participates in the carrying out of a criminal purpose which leads to a further participant committing murder should be held criminally responsible for the murder on the basis that he knew that a weapon which could be readily used to kill was being carried for use in furtherance of that purpose, so that there was an obvious risk of murder, and that in such a situation it would be immaterial whether he knowingly ran the risk or was recklessly blind to it; that if the relevant concert is established, there is no separate question as to whether the individual accused had the necessary intent which is required for guilt of a crime which is within the scope of a common criminal purpose, and he is responsible for that crime in the same way as if he had personally committed it; and that the nature and scope of a common criminal purpose should be discerned on an objective basis, and that in the case of individual accused the question was what was foreseeable as liable to happen, and hence what was or was not obvious in this respect. Again, the same considerations apply, mutatis mutandis, to a charge of attempted murder.

[42] In our opinion there was sufficient to be found in the evidence of Wood and Robertson, as set out above, to enable the jury to conclude that both Kelbie and Tams were involved in the first incident, when Rush was the victim of a relatively minor assault; that they and JM then left the house and returned sometime later; that one of the party was then in possession of a wooden implement; that this was used on Ross and Cairns in a way which demonstrated a willingness to use it as a weapon; and that all three then went upstairs, when one of them, fortified by the presence of the others, used the implement to commit a grave assault on Rush. Although neither Wood nor Robertson went so far as to give evidence that a weapon had been used, the nature of the injuries to Rush was capable of yielding the inference that a blunt instrument had been used. The bloodstains in the bedroom were capable of yielding the inference that that was where the injuries were inflicted on him. The bloodstain on JM's shoe served to demonstrate that he at least was nearby when that happened. It was open to the jury to conclude that there was sufficient conjunction of testimony between Wood and Robertson on the basis that each of them described a somewhat different phase of the second incident, which on any account was not instantaneous but took some time; or simply on the basis that that part of Robertson's evidence which could be said to relate to the place of the assault clearly fell to be rejected. In our view, therefore, the trial judge correctly concluded that there was sufficient evidence to entitle the jury to convict both Kelbie and Tams of assaulting Rush in the second incident, in pursuance of a common criminal purpose to give him a beating. We cannot fault his reasoning in this respect, which is summarised above. Further, we do not consider that it can be said that this was a conclusion which no reasonable jury could have reached. It follows, therefore, that we are not persuaded that the ground of appeal based on section 106 (3)(b) of the 1995 Act is made out.

[43] It remains for consideration whether there was sufficient evidence to convict both appellants not only of assault, but of attempted murder. In our opinion there was. As we have said, on the evidence they were both involved in the first incident, they left the house together, when they returned one of them had a wooden implement, and after the incident downstairs involving Ross and Cairns all three went upstairs in a manner from which it could be inferred that their common intention was to use the implement to give Rush a serious beating. To use such an implement for a beating of the kind which Rush received carries the obvious risk that life may be taken and may readily be characterised as attempted murder on the part of whoever wields it. If it is foreseeable by the other participants that it is liable to be wielded in that way as part of a common criminal purpose, then it is open to a jury convict them also of attempted murder.

[44] In our opinion, assuming for present purposes that the evidence served to demonstrate that Kelbie was the assailant who wielded the wooden implement, we are satisfied that there was sufficient evidence to entitle a jury to convict him of attempted murder; and there was no suggestion to the contrary in the course of his appeal. We are also satisfied that there was sufficient to entitle the jury to convict Tams of attempted murder on the basis outlined above.

Result

[45] For these reasons we reject the grounds of appeal for both appellants, and both appeals against conviction are refused. Both appellants have also lodged appeals against the sentences imposed by the trial judge. These will be heard at a later date.