APPEAL COURT, HIGH COURT OF JUSTICIARY [2010] HCJAC 98
Lord Carloway Lord Hardie Lord Malcolm	XC432/09 & XC449/09 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeals against conviction by (FIRST) ROBERT KIDD;  and (SECOND) JOHN TIFFONEY Appellants; against HER MAJESTY’S ADVOCATE Respondent: _____________

First Appellant:  T.L.  Ross;  Capital Defence (for Ross & Fox, Glasgow)

Second Appellant:  Shead;  Paterson Bell (for Doonan McCaig, Glasgow)

Respondent:  D.A.C.  Young QC AD;  Crown Agent

7 October 2010

(1)        General
[1]        On 16 June 2009, at the High Court at Dunfermline, the appellants were found guilty of a series of assaults on 13 July 2008 at the “T in the Park” music festival in Fife.  The first three assaults libelled were on girls, namely Ashleigh McComb and two sisters, Laura and Leanne More, by spitting on them and punching two of them on the head.  The fourth assault included the attempted murder of Mark Morrison by punching him repeatedly to the head and body and repeatedly stabbing him on the body with a knife, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life.  A fifth charge libelled a breach of the peace by Mr Kidd on 15 August 2008 at 8 Grampian Way, Barrhead, by brandishing a Samurai sword at several Strathclyde police officers.  That charge is not the subject of an appeal.  Both appellants were sentenced to nine years’ imprisonment in cumulo on charges (1) to (4).  Mr Kidd was also given a consecutive period of six months’ imprisonment in respect of charge (5). 

(2)        Evidence of the Assaults

[2]        The trial judge reports that the festival was held between 11 and 13 July 2008.  A group of eight friends, including all of the complainers, travelled together to the site.  They arrived on Friday 11 July and pitched three tents in a semi-circle in one of the designated camp areas.  Performances by various groups and artists took place on a number of stages.  When the main concert had finished on the Saturday night, the friends made their way back to their tents. 

[3]        The narrative given by the trial judge is that, sometime after midnight, Laura More became aware of two boys, not from their company, near to her tent.  One, or possibly both of them, was going to urinate on a tent belonging to her group.  Laura More had said “don’t do that” and “we’re all here to have a good time, just leave”.  One of the boys walked over to her, spat on her and started verbally abusing her.  She was angry and spat back at him.  Hearing the commotion, Miss McComb and Mr Morrison came out of one of the other tents.  Miss McComb told the boy not to talk to Laura like that.  He then spat at Miss McComb and punched her in the face.  Mr Morrison grabbed the boy with a view to stopping his attack on Miss McComb.  The two ended up fighting on the ground.  The other boy ran to join in the fight.  He either jostled or pulled Leanne onto one of the tents as he did so.  Mr Morrison was punched and kicked by the two males.  No witness saw a weapon being used.  Leanne More saw the hand of one of the attackers going up and down from head to waist level.  She thought it was the hand of the taller boy, whom she tried to pull off.  He pushed her into a hedge.  The fight lasted for perhaps a couple of minutes.  Mr Morrison found himself fighting for breath.  He collapsed on to his knees.  One of the assailants kicked him again on the side of the head.  The two attackers then ran away.  It rapidly became apparent that Mr Morrison had been stabbed.  When he was subsequently examined, he was found to have a total of eleven stab wounds.  They were located on his back, right side, mouth and head.  One of the wounds had penetrated his lung.  He was taken to Ninewells Hospital in Dundee, where he remained for five days.

[4]        Perhaps because the sequential libelling of the charges does not correspond to what actually happened, the trial judge has attempted in his report to place each individual assault in the correct chronological order.  But it is not clear that the incident can be described in such a strictly linear fashion.  It is important to note how the incident started and progressed by looking at some of the detail of the evidence of Miss McComb and the More sisters. 

[5]        Leanne More testified (transcript pp 107 et seq) that she had left her tent, along with others, to go to another event at the festival.  She saw two people coming up behind the tent occupied by her sister.  “[It] looked as if they were pulling up their trousers as if they’d done the toilet.” They were challenged either by herself or her sister, who was with her at this point.  An argument followed.  Leanne described this as involving the taller of the two boys being cheeky and spitting on her sister and hitting, and possibly also spitting on, Miss McComb.  By the time Mr Morrison intervened, she described the two boys as “like, in our face, if that makes sense” (p 117).  The taller of the two boys had been punching Mr Morrison on the back, with his fist going up and down (p 115).  She tried to intervene and was pushed out of the way onto a hedge or tent.  The smaller boy then started hitting Mr Morrison.  At that point, the taller boy had Mr Morrison bent over and his fist was “going up and down at his back and his side” (p 116).  Mr Morrison was pulled over and the taller person “had his jumper pulled up so you could see his back, but he was bent over … and you could just see the fist going up and down” (p 117).

[6]        Laura More’s account was of hearing her sister asking the two boys not to urinate on the tent.  She had emerged from her tent and had also told the two boys not to urinate.  One of them walked over and spat on her.  She spat back.  An argument ensued with Miss McComb intervening and being spat upon and punched, before Mr Morrison tried to stop what was happening.  She described the start of the incident as follows (p 88):

“I’m sure that my sister … my sister stuck up for me, said something.  I can remember mentioning ‘We’re all just here to have a good time, can you just leave’.  And then obviously Ashleigh had heard what had happened and I had been getting called names, so Ashleigh said ‘Don’t talk to her like that’.  That was all she mentioned, all she said, and one of the boys just spat on … the same boy that spat on myself spat in Ashleigh’s face and then punched her”.

Mr Morrison had intervened by pulling the taller of the boys away from Miss McComb and a fight began between the two males, with Mr Morrison being hit on the face and his sides.  The smaller of the boys had pushed Leanne out of the way, onto a tent, and then joined in the fight between his friend and Mr Morrison.  The two were hitting Mr Morrison (p 90). 

 “all over.  They were punching him on the head and on the back, on his front and on his side…It went on for a few minutes”.

[7]        Miss McComb had been in a tent with Laura More and Mr Morrison.  She said that Laura had left the tent and was standing outside.  She continued (p 4):

“… we heard like some commotion from outside and we’d heard like Laura and Leanne, and it was just like … we could hear, like, it was boys being quite aggressive towards the two of them, so like myself and Mark, the two of us, just went out to see what was going on and … the two boys were like shouting and being aggressive towards the girls”.

She described the taller of the males spitting on Laura More and, when she intervened, then spitting on her and punching her on the face.  She saw Leanne More being pulled onto a tent by one or both of the two boys and then the two attacking Mr Morrison.  In that regard, she said that she saw “both the boys on top of Mark, hitting Mark” (p 8).  She thought that the taller one had been hitting Mr Morrison around the face and the smaller one had been punching him lower down.  Both were still hitting him after he had fallen to the ground.

[8]        The episode involving the attack on Mr Morrison was also spoken to by Mr McDade.  He said that he saw a person, who must have been Mr Morrison, lying on a tent and (p 56-57):

“two others sort of hanging over him.  …They were sort of like just kind of punching in tae him, and he was sort of like, had his hands up as well sort of, trying to push away”.

(3)        Evidence of Identification

[9]        The principal issue at the trial was not the sequence of events, or whether they had happened, but whether there was sufficient evidence to identify the two appellants as having perpetrated the offences.  The judge reports that Mr Tiffoney appeared in court to be clearly the taller of the two men.  That was apparent also during the hearing of the appeal.  The trial judge noted that there was no evidence of their relative heights, although the Advocate Depute pointed to a passage where, in cross-examination, Leanne More had described Mr Tiffoney as looking “bigger” or “obviously bigger” (p 159).  Neither appellant gave evidence.

(a)        MR KIDD
[10]      Leanne More identified Mr Kidd both at a VIPER (Video Identification) parade and in court as being one of the boys involved in the incident.  In her evidence in chief, she said that she thought that she was identifying the taller of the two boys at the parade.  Mr Kidd was the boy who had spat at her sister Laura, hit Miss McComb and began the fight with Mr Morrison.  In cross-examination for Mr Kidd, she said that she was ‘positive’, ‘sure’ and had ‘no doubts’ about her identification at the parade.  She said that she had recognised Mr Kidd as being the taller of the two boys, because she had thought that she would have been more likely to recognise the taller boy.  Under cross-examination for Mr Tiffoney, however, her position altered in one respect.  She said that she was not sure if the person, whom she had identified, had been the shorter or the taller of the two boys.

[11]      Marc Shields had not known any of the persons involved in the incident.  He had heard screaming and girls’ voices.  He saw two males confronting a female.  She had looked to Mr Shields as if for help and had said:  “these guys have just stuck the head on me”.  He saw another female holding her face, which had blood on it.  He also saw a male kneeling on the ground, struggling to breathe.  The two males looked at Mr Shields and casually walked away.  Mr Shields identified Mr Kidd and a stand‑in at Mr Kidd’s VIPER parade, but stated that it was more likely that it had been Mr Kidd.  He identified Mr Kidd in court.  He was asked in examination in chief whether he was looking for the taller or shorter of the two men at the parade.  He replied:  “I imagined I was looking for either of them, I believe I picked out the smaller man”. 

[12]      At the parade, Miss McComb had identified Mr Kidd and a stand‑in as both resembling the male responsible.  As already observed, she testified that, of the two men who had been involved in the assault, one had been taller then the other.  It had been the taller of the two men that had assaulted Laura, herself and Mr Morrison.  The shorter man had only been involved in the assault on Mr Morrison.  In examination in chief, she was asked if she had picked out one man at the parade, to which she assented.  When, however, she was asked if she could pick out the man in court, she identified Mr Tiffoney as being the person who had spat at and punched her.  She said that:  “his face rings alarm bells in my head” and that his face had come back to her, notwithstanding her failure to pick Mr Tiffoney out at his VIPER parade.  Later in her evidence, she also said that she thought she had picked out Mr Kidd at the parade. 

[13]      Kieran McDade gave evidence that he had travelled to “T in the Park” with a group from Neilston, which had included someone whom he called ‘Bobby’.  He identified Mr Kidd as that person.  He had heard the sounds of a fight and saw the fight.  His initial position in evidence was that he did not recognise any of the participants.  However, he equivocated when the VIPER parade report was put to him.  He seemed to accept, as was indeed the case, that he may have earlier identified Mr Kidd as being one of the assailants.  He did not adopt that evidence as being his testimony in court.

(b)        MR TIFFONEY

[14]      In relation to Mr Tiffoney, there was, as already noted, Miss McComb’s identification in court of Tiffoney as being the person who had spat at and punched her. 

[15]      David Crozier had no connection with the complainers or the appellants.  He testified that he had been chatting in a tent with three friends when a man asked if he could come over and join them.  A second man also came over.  Mr Crozier noticed that he had blood on his hands.  A female friend of Mr Crozier said to the man: “you have blood on your hands, would you like me to wash it?” He answered “no” and said that someone had tried to fight him.  A photograph had been taken of the group in the tent.   Mr Crozier identified the male on the left of the photograph as being Mr Tiffoney, whom he also identified in court. 

[16]      There was forensic science evidence that saliva, found on a top labelled as coming from Miss McComb, matched Mr Tiffoney’s DNA profile.  It was estimated that there was a 1:1 billion chance of it belonging to another male.  Miss McComb had said that her black and white striped top had been “seized” from her by the police for analysis.  There was also a joint minute stating that:

“9.        … label number 54 is a black and white top lawfully seized from … Ashleigh McComb for DNA analysis and is the item referred to at page 4 of [the forensic science report].”

(4)        The Grounds of Appeal and Submissions
(a)        APPLICATION TO AMEND
[17]      Mr Kidd lodged his Note of Appeal on 24 August 2009.  Mr Tiffoney lodged his Note only on 16 November 2009.  At Procedural Hearings on 14 January and 8 April 2010 respectively, the appeals were said to be ready to proceed to a joint hearing.  Both Notes of Appeal were in substantially similar terms; each appellant asserting that there was no evidence from which it could properly be inferred that this had been a concerted attack, leading to an insufficiency of identification evidence in relation to each charge.  On that basis, the trial judge ought to have sustained each appellant’s no case to answer submission.  There was a subsidiary ground that he ought to have sustained a “common law” submission that the use of the knife should be excluded from the jury’s consideration as there had been insufficient evidence that either appellant knew of the likely use of a knife.  As will be seen, there was also a complaint by Mr Kidd of a misdirection on a particular evidential point.

[18]      On the morning of the hearing, Mr Tiffoney tendered “Additional Grounds of Appeal” complaining about other, quite separate, jury directions.  The first related to the trial judge’s response to a question from the jury about whether they could convict one accused on one charge and acquit the other accused on that charge.  The trial judge had repeated his earlier direction that, unless the jury found concert established, they could not convict either accused on any of the charges (1) to (4).  This was said to have been a misdirection since, in the absence of concert, the jury could have acquitted one accused and convicted the other.  Secondly, it was said that there had been a misdirection in that the trial judge ought to have made it clear to the jury that they could convict one accused as libelled and the other under deletions.  Thirdly, there was said to have been a misdirection in that the jury ought to have been specifically directed that, if they did not find concert proved, they could convict an accused only in respect of what he had actually done.  Finally, there was a quite separate point about a misdirection on the approach which the jury should take to prior inconsistent statements of witnesses.

[19]      After what appeared to be a degree of diffidence, it was confirmed that a motion to amend the grounds of appeal was being made by Mr Tiffoney.  It was said that, although Mr Tiffoney and his advisors had not previously identified the new grounds as arguable, the fault lay with the judge, who had granted leave to appeal on the grounds in the Note of Appeal, in not uncovering these other avenues of appeal.  This seemed to be a contention based upon the power at sift to specify an arguable ground of appeal not contained in a Note of Appeal (s107(7) of the 1995 Act).  It was submitted that it had been no fault of Mr Tiffoney that the new grounds had not been previously identified. 

[20]      Section 110(4) of the 1995 Act provides that “except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal”.  Mr Tiffoney advanced no cause sufficient to justify the court allowing him to amend his grounds of appeal on the morning of the hearing.  Had the court allowed the proposed amendment, the appeal hearing, which had been fixed months in advance, would have had to have been postponed.  A supplementary report on the new grounds would have had to have been requested from the trial judge, prior to a determination of whether leave to appeal should be granted on these grounds.  In these circumstances, the motion to allow the grounds to be amended was refused. 

(b)        MR KIDD
[21]      Each initial ground of appeal was couched, not in terms of general insufficiency of evidence but, as an error on the part of the trial judge in not sustaining no case to answer submissions tendered in respect of each charge in turn.  In relation to each of charges (1) to (3), the ground was that there was insufficient evidence of concerted attacks on the three female complainers and that this had resulted in an absence of corroboration.  The approach taken in the submission was, understandably, a sequential one dealing with each assault in the order in which the trial judge had described them in his report.  Thus, dealing first with charges (2) (Laura More) and (1) (Miss McComb), there had been no evidence that either of these assaults had been part of a concerted attack, rather than being perpetrated by one person.  That being so, since only Leanne More identified the appellant as the perpetrator of each assault, there had been insufficient evidence that he had been the attacker.  Similarly, in relation to the attack on Leanne More, there was still no evidence of concert and no evidence of Mr Kidd being the perpetrator of this assault.

[22]      In relation to charge (4), it was accepted that there had been sufficient evidence of a concerted attack by punching, but there had been no corroboration, of Leanne More’s identification of Mr Kidd as the person who had gone on to fight with Mr Morrison.  Mr Shields had identified Mr Kidd at the end of the incident, but that did not assist, even if there had been other evidence that it had been the same person who had attacked Laura More, Miss McComb and Mr Morrison in turn.  More important was the absence of any evidential basis for the jury to conclude that Mr Kidd had used a knife or that it would have been foreseeable for him to have known that a knife would be used.  There was no evidence that there had been more than one knife involved. 

[23]      Finally, it was said that the trial judge had misdirected that jury when he had said to them that:

“None of the witnesses who attended the video identification parade held on 7 February 2009 selected the image of … Mr Tiffoney.  By contrast, at the parade on 17 August 2008 four persons identified …Mr Kidd, as being present on the night of the incident’.

The complaint here was that only two people had identified Mr Kidd at the parade, namely Leanne More and Mr McDade.  Miss McComb had only described Mr Kidd as similar, as she had a stand‑in.  Mr Shields had also referred to Mr Kidd and a stand‑in, but saying only that it was “more likely” to be Mr Kidd.  Although not a ground of appeal which could succeed in isolation, it could be taken into account in determining whether a miscarriage of justice had occurred. 

(c)        MR TIFFONEY
[24]      Mr Tiffoney submitted that there was no question of concert on charges (1) to (3).  There had been no evidence of concert in respect of the assaults on the females and the trial judge had not addressed this complaint adequately in his report.  The issue was whether there had been corroborated evidence of Mr Tiffoney’s involvement.  There were, as the trial judge had noted, three principal sources of evidence.  First, there was Miss McComb’s “dock” identification.  Secondly, there was the identification by Mr Crozier and thirdly there was the evidence about the appellant’s DNA being on Miss McComb’s top.  In relation to the DNA, however, the trial Advocate Depute had not asked Miss McComb to identify her top in court.  Rather, she had only said that she had been wearing a top which had been taken from her that evening.  The Joint Minute had said that the top in court had been seized from her, but that had not provided a sufficient link to prove that it was the same top which she had been wearing during the incident. 

[25]      There was also no evidence that Mr Tiffoney had acted in concert with Mr Kidd, whom Leanne More had identified as the first attacker.  Mr Tiffoney had not been identified as participating in the assault on Mr Morrison.  In any event, if there had been concert, it had been spontaneous and not antecedent.  The crown had not suggested that more than one knife might have been involved.  That being so, there was no evidence that Mr Tiffoney could have been aware of the potential use of a knife.

[26]      Finally, the trial judge had been in error in failing to sustain Mr Tiffoney’s objection to the “dock” identification of him by Miss McComb, following upon her being taken through her identification of Mr Kidd at the VIPER parade.  She had not identified Mr Tiffoney at his VIPER parade.  In any event, in reality, her “dock” identification had been mistaken.  There had been prejudice to Mr Tiffoney as a result.  The dock identification had undermined Mr Tiffoney’s right to a fair trial.  The trial judge should have directed the jury to disregard the identification.  It was accepted that this was not a ground of appeal, but nevertheless it was said to demonstrate that, “in the round”, a miscarriage of justice had occurred.   

(d)        RESPONDENT
[27]      The Advocate Depute submitted that there had been sufficient evidence identifying the appellants as the perpetrators of all the assaults.  There had been evidence that there had been only two assailants who, between them, had carried out all four assaults.  There had been sufficient evidence that the two appellants had been the two assailants.  In relation to Mr Kidd, Mr Shields had identified him as the smaller of the two men.  Leanne More had identified him as one of the two, although she was ultimately not sure whether he had been the taller or the smaller man and thus the man who had spat at Miss McComb.  Miss McComb had identified Mr Kidd at the parade.  The Advocate Depute stated that he did not found upon Mr McDade’s evidence at all.  In relation to Mr Tiffoney, there had been the evidence that his DNA had been found in what appeared to be saliva on Miss McComb’s top, which had been adequately identified.  There was also the identification by Mr Crozier and the “dock” identification by Miss McComb.

[28]      There had been sufficient evidence of concert, although at the stage of “no case to answer” there had also been evidence, which the jury could have accepted, to identify either accused as involved in each assault.  Leanne More had said that it had been the taller person who had spat at her sister and at Miss McComb.  Laura More said that it had been the same person who had spat at her and Miss McComb.  Leanne More had described the assailants as “being in their faces”.  Laura More had described Mr Morrison as grabbing the boy who had attacked Miss McComb, i.e.  the taller of the two.  Leanne More had said that it had been the smaller of the two (i.e. Mr Kidd) who had pulled her into a tent.  Laura More also said that it had been the smaller one who had pushed her sister out of the way.  There was the DNA linking Mr Tiffoney as the person who had spat at Miss McComb.  On this analysis, it was the taller of the two persons (i.e. Mr Tiffoney) who had been the first in the attack on Mr Morrison. 

[29]      On the other hand, there was evidence pointing to the man first attacking Mr Morrison as being Mr Kidd.  That had been the evidence of Leanne More and he had been picked out by Miss McComb at the identification parade.  The jury could have accepted that evidence and rejected the DNA evidence as pointing to Mr Tiffoney being the first attacker.  However, the crown had proceeded on the basis of concert and there had been sufficient evidence of this from the start, with the urination on the tent and the aggression which followed.  What developed from there was an attack by the two appellants on the group.

[30]      There had also been sufficient evidence that whichever of the two did not have the knife would have known that it was being used.  That person had carried on the assault in that knowledge.  There had been some eleven blows with the knife.  An inference could be drawn that the use of the knife would have been visible to anyone close to the scene, even if the witnesses further away had not seen a knife.  The fight had gone on for some time; anywhere between 30 seconds and three to four minutes.

[31]      In relation to the objection to the “dock” identification, it was plain from Holland v HM Advocate 2005 1 SC (PC) 3 that such an identification was not, of itself, an infringement of the right to a fair trial.  That depended upon the circumstances and the directions given to the jury by the trial judge.  The trial judge had given appropriate directions.  The judge had also given accurate directions on the identifications made by the witnesses at the VIPER parades.

(5)        Decision

[32]      There are three preliminary grounds of appeal which are best dealt at the outset.  First, there is the identification of Mr Tiffoney in court by Miss McComb, notwithstanding that she had failed to pick him out at his VIPER parade and had instead identified a stand‑in.  She had also identified Mr Kidd and a stand‑in, as the person whom she had recognised, at Mr Kidd’s parade.  It is not disputed that the trial Advocate Depute’s question about whether Miss McComb could identify the person, whom she had already identified at what was Mr Kidd’s parade, in court had been a legitimate one at least in the expectation that she would then have identified Mr Kidd.  In these circumstances, the answer to what was a legitimate question must be regarded as admissible evidence.  The problem which arose, and which had presumably been anticipated as a risk by Mr Tiffoney’s counsel, had been the identification instead of Mr Tiffoney.  But in that situation, and having regard to what was said in Holland v HM Advocate (supra), the trial judge had been entitled to repel the objection and allow the Advocate Depute’s question to be answered, even if the answer might have been a surprise to some.  The evidence was admissible.  The only ground of appeal is directed to the issue of that admissibility.  In allowing the question, the trial judge was entitled to have regard to counsel’s ability to challenge any identification in cross-examination and to his own capacity to give appropriate directions to the jury on any dangers said to be inherent in “dock” identifications.  In these circumstances, he was almost bound to repel the objection and allow the question to be answered.  No point is raised in the Note of Appeal about whether, as a result of the answer to the question and the trial judge’s treatment of the issue in his charge to the jury, any unfairness arose.  Mr Tiffoney’s attempt to introduce such an argument in submission, in the absence of a ground of appeal, was not a legitimate one in terms of the relevant statutory provisions.  In any event, this argument amounted to little more than a revisitation of that unsuccessfully pursued in Holland v HM Advocate (supra).

[33]      The second preliminary matter relates to whether it had been proved that the t-shirt, upon which Mr Tiffoney’s DNA had been found, had been adequately proved to have been that worn by Miss McComb at the festival.  It is true that the trial Advocate Depute had omitted to have Miss McComb identify this article of clothing.  However, she had stated in evidence that she had been wearing a black and white striped top at the time and that this had been “seized” by the police.  Paragraph 9 of the Joint Minute states that label 54 is a black and white top seized from Miss McComb and is the one upon which the DNA analysis was carried out.  These facts were sufficient to enable the jury to infer that this was indeed the top worn by her at the festival.

[34]      The third preliminary matter is the complaint about the directions on how many persons had identified Mr Kidd and Mr Tiffoney.  It is true that the trial judge had said that no-one had identified Mr Tiffoney at his parade and four persons had identified Mr Kidd.  Some of these identifications had been less than definite.  However, as the trial judge reports, he proceeded to qualify his general statement with the following:

“… immediately after the passage referred to … I directed the jury that ‘In the case of Mark Shields he identified the first accused and a volunteer stand-in but said that Mr Kidd was more like him.’ (page 13, lines 17 to 18).  I made a number of comments urging the jury to be careful about the identification evidence of Ashleigh McComb (pages 13 to 15)”.

In these circumstances, it is clear that the trial judge did accurately direct the jury on just what the identifications of Mr Kidd had amounted to. 

[35]      These three grounds of appeal must therefore fail.  That being the position, it is important thereafter to focus on the main issues raised in the appeal.  In particular, it must be observed at once that the significant charge on the indictment is the attempted murder of Mr Morrison.  The remaining assaults are of little relative importance, although the evidence relating to them was significant.  The first issue in relation to the attack on Mr Morrison is whether there was sufficient evidence from which an inference of concert could be drawn.  The court has no difficulty at all in concluding that such evidence did exist.  On any view of the circumstances, by the time of the initial stages of the attack on Mr Morrison, one man had already assaulted both Laura More and Miss McComb and the other had assaulted or was assaulting Leanne More.  At that time, both assailants were engaged in a concerted attack on the group and both then engaged in the attack on Mr Morrison.  If identified, both men would be bound to be convicted of some element of the assault on Mr Morrison.

[36]      The second issue is whether there was sufficient evidence from which the jury could infer that the scope of the attack involved the use of a knife.  It was accepted by the crown that they had proceeded on the basis that only one knife had been used.  It is not immediately obvious why that should have been the case.  On one view, the number and location of the wounds might have entitled a jury to hold that each man had a knife.  However, in view of the crown’s approach at the trial, the court will proceed on the basis that only one knife was involved.  In that situation, in order to convict both appellants of the stabbing and thus the attempted murder, there would have to have been sufficient evidence for the jury to infer that whoever did not have the knife would have known of its use and continued to assault Mr Morrison in that knowledge.  Once again, the court has no difficulty in concluding that there was such evidence.

[37]      This was not an assault involving a single stab to a victim in the course of a more general unarmed assault.  It was a sustained attack involving some eleven separate stab wounds in different parts of the body.  There was no evidence that, once begun, either of the two assailants withdrew from the fray in advance of its conclusion.  Indeed the opposite is the case.  The two seem to have broken off at or about the same time, by which time the multiple stabbing had been concluded.  Having regard to these circumstances, there was sufficient evidence for the jury to infer that whichever of the assailants did not have a knife would have known that his co-assailant was using a weapon and that he had nevertheless pressed on with his own attack.  That being so, concert in the use of the knife was a conclusion reasonably open to the jury.  The resultant verdict was one which they were, in the event, content to return.  They did so having had clear directions from the trial judge on this point as follows (p 17):

“Let’s go back to the example of the street fight.  Suppose the initial attacker unknown to the others had a knife and stabbed the victim.  All three would be guilty of assault by punching, but only the first would be guilty of assault by stabbing.  That’s because using the knife wasn’t expected by the others.  But if the other two saw the knife was being used or must have known that it was being used and continued punching the victim, they would also be guilty of assault by stabbing because they had accepted the escalation of the violence in the joint criminal purpose.  So an unarmed attacker can be responsible for an attack with a weapon if he knew, or must have known, the co-accused was armed and continues his attack”. 

[38]      The third issue is whether the two appellants had been sufficiently identified as the assailants.  There were only two assailants.  There may have been a degree of evidential confusion in relation to which appellant had committed which particular act.  For example, if it were accepted (as spoken to by Leanne More), that the person who had assaulted Laura More had also assaulted Miss McComb and had been the first to become involved with Mr Morrison, there was scope for the jury to hold that this was either Mr Kidd or Mr Tiffoney.  The DNA findings pointed towards Mr Tiffoney as assaulting Miss McComb, but Leanne More herself had identified Mr Kidd as this person.  This is ultimately of no moment.  There was ample evidence that it was the two appellants who were the two assailants.  Thus Mr Kidd is linked to the incident by the identifications (of varying strengths) of Leanne More, Mr Shields and Miss McComb.  Mr McDade at least also places him at the festival, which is not without weight.  Mr Tiffoney is linked by the DNA evidence, Miss McComb’s identification of him in court and Mr Crozier’s identification of him near the scene with blood on his hands and speaking to involvement in a fight.  Whatever the confusion or uncertainly about the part played by each appellant, both were clearly identified as the two assailants and that is sufficient to warrant the jury’s verdicts. 

[39]      The grounds of appeal in relation to the attempted murder of Mr Morrison must all therefore fail.  That leaves the grounds relative to the minor assault charges on the female complainers.  It remains worthy of some comment that these grounds all focus not upon a general sufficiency of evidence, but upon whether the trial judge ought to have sustained the no case to answer submissions.  The answer to the latter question must undoubtedly be in the negative.  At that stage, there was evidence that the person who had assaulted Laura More and Miss McComb was Mr Kidd (e.g. the identifications by Leanne More and, at the parade, Miss McComb).  There was also evidence that it was Mr Tiffoney (e.g. the DNA findings).  From that, it could be inferred on the evidence that the assailant of Leanne More was the other person.  On that view alone, the trial judge would have been bound to repel the submissions made.  The real problem which arises is not correctly focussed upon the no case to answer decision.  Rather, it is that, unless concert were established, the jury would not have been entitled to convict both appellants, since only one person could have committed the acts libelled in each charge.  The trial judge might have left it open to the jury to reject concert and still to convict individual accused on each charge.  He elected not to do so, directing them instead that, without a finding of concert, they would be bound to acquit.  Such a direction favoured the appellants.  Be that as it may, the jury did find concert proved from the earliest stage and the issue now, in a practical sense, is whether there had been sufficient evidence to enable them to reach that conclusion in relation to the attacks on the female complainers.

[40]      Although the matter is not without its difficulty, there was sufficient evidence to prove concert.  Where it is established that one of the two appellants must have been the actor in each of the first three charges, the issue is whether the jury were entitled to infer concert by reason of the other person not simply being present at the time but by assisting in the attacks by, for example, offering positive encouragement to the other at the scene, or by acting in a manner calculated to deter others from intervening.  As has already been noted, it is perhaps unwise to attempt to analyse these three assaults by taking each in strict chronological turn.  The reality is that, prior to any physical attack, the two appellants were engaged in a deliberately provocative act by urinating on a tent belonging to members of the complainers’ group.  When, not surprisingly, remonstrations followed, both Leanne More and Miss McComb described both appellants as acting aggressively and together towards their group.  That aggression then escalated into a physical assault by one appellant on Laura More and Miss McComb and by the other appellant on Leanne More.  Having regard to the antecedent aggression followed by immediate sudden attacks by both men on different female complainers, the jury were entitled to find that, from the start, both men had been acting together, however spontaneously, in an attack on the group.  Concert in all of the assaults could thereby be legitimately inferred.

[41]      These appeals are therefore refused.