APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 112
Lord Justice General Lord Menzies Lady Smith	Appeal No: XC382/12   OPINION OF THE COURT   delivered by LORD MENZIES   in   APPEAL AGAINST CONVICTION AND SENTENCE   by   ALAN HUGHES   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: A Ogg (sol adv); Drummond Miller LLP

Respondent: Brodie QC AD; Crown Agent

 

25 September 2013

 

Introduction

[1] On 29 May 2012 at the High of Justiciary at Glasgow the appellant and his co‑accused were both convicted of a charge in the following terms:

"on 29 September 2011 at Flat Ground/Left, 1080 Cathcart Road, Glasgow you ALAN HUGHES and NASRULLAH ARFAN UZZAMAN did, whilst acting with others, assault Safdar Hussain, c/o Strathclyde Police, Helen Street, Glasgow, and did seize him by the body, pull him into a close there, repeatedly strike his head against a wall, push him and force him to enter the house there, detain him in said house against his will and abduct him, brandish knives or similar instruments at him, repeatedly punch and kick him on the head and body, compel him to sit on a chair, bind his hands and feet, repeatedly threaten to kill him and threaten violence to his family, repeatedly strike him on the head and body with a knife or similar instrument, repeatedly strike him on the head and body with an axe or similar instrument, repeatedly strike him on the head with a shovel or similar implement, repeatedly pour boiling water over his body, spray an unknown liquid on his head and body and hold a hot iron against his body all to his injury and permanent disfigurement."

 

[2] On 27 June 2012 the appellant was sentenced to imprisonment for a period of 8 years from 29 May 2012. His co‑accused was sentenced to imprisonment for a period of 6 years from 3 October 2011. The appellant has appealed against conviction and sentence.

 

Circumstances of the offence

[3] Some time prior to the incident, the complainer had been doing some work in the home of the parents of the co‑accused Uzzaman. On the day in question, he received a phone call from someone referred to as Faisal, who was apparently a nephew of Uzzaman senior. He accused the complainer of having stolen some items of jewellery and demanded that they be returned. The complainer denied taking such items. Shortly afterwards Faisal arrived at the complainer's house and asked him to accompany him. He was told they were going to "an uncle's house", meaning the home of an older person. They left in a car driven by Faisal and arrived at a house in Cathcart Road where Uzzaman junior was standing outside. Uzzaman asked the complainer to go towards him saying there was something needing fixing in the house and would he have a look. He held the complainer by the arm and pulled him towards the house. Faisal came out and he too was holding the complainer. They pulled him into the close where one of them started hitting his head against the wall beside the door. Uzzaman had a knife in his hand, which he had taken from the pocket of his trousers. He said that if the complainer made any noise he would use the knife and finish him off. The complainer was dragged into the kitchen of the house and punched on the face by Uzzaman "many times". He was also kicked on the right side of the head. He was bleeding from the nose and head. At one point he was on the floor and he was punched on the face and kicked. Then Uzzaman said "get up and sit on the chair". When the complainer sat on the chair Uzzaman started to punch him again. He tried to protect himself by putting his hands in front of his face but Uzzaman took a strap and tied him to the chair. The strap was placed round the upper part of his arms and his body and he was tied to the chair in that fashion. At this point Faisal, who had been elsewhere, returned and asked for the keys to the complainer's house. He left with those keys. After this Uzzaman started to kick and punch the complainer again and told him that there was a white man coming. He was told "if you have these items give them back, if not you will be killed". Only Uzzaman was present when this was being said. He continued to assault the complainer after this. Thereafter Faisal returned with documents which he had taken from the complainer's house including a passport and identity card as well as pictures of his children. Faisal left and Uzzaman started to assault him again repeating that there is "a white person coming who will finish you off". He was told "this person will kill you, wrap you in something take you to a jungle and get rid of you". After this several other people arrived at the house including Uzzaman's father who started to stab the complainer with scissors. These people then departed, leaving only Uzzaman and the complainer in the house. The complainer was still tied to the chair and had been bleeding.

[4] At this point the appellant entered the kitchen bearing a knife in his hand. The complainer stated in evidence "I was very scared because I was told this man could kill me". He was then stabbed with the knife by the appellant on the thighs, upper arms and on his head. The appellant spoke in English and the complainer, whose English was very poor, was able to understand only little bits of what he said. "I was able to understand he was saying give the items back or I will kill you." After a few minutes the white man, the appellant, left, returning a few minutes with a mask on his face and an axe in his hand. He was saying "tell us or I will kill you right now". The complainer was struck with the back of the axe on his legs, arms, head and chin. The appellant then took the complainer's shoe laces and tied his legs to the chair with the laces. While this was going on Uzzaman was showing the complainer pictures of his family saying that "this white man" (the appellant) will go to your house, will sleep with your daughter, will do the same to your wife , will set your house on fire and kill them off. The appellant struck him on the hand with the axe while Uzzaman held his hand out. The appellant filled a cup of water from the kettle and threw it over the complainer. The water had been boiled. Uzzaman then took him towards an iron which had been switched on and was sitting on the worktop. The appellant picked up the iron and put it on the complainer's thigh, pressing it down. At this point the complainer lied and admitted that he and a friend had stolen the items. This friend was then brought to the house by Faisal and confronted with this accusation from the complainer. He denied it and in turn was assaulted. The complainer was eventually released from the house, made his way to a shop and sought assistance. The spray bottle referred to in the indictment was used once on his face, arm and leg by the appellant. At the same time the appellant was using the scissors to try to stab the complainer. During the assault he was also hit several times with a shovel by Uzzaman senior.

[5] The appellant maintained in evidence that he had called to visit Uzzaman, with whom he was to play poker. When he arrived at the close the door was open. It was leaning against the lock but not closed. He saw a man bleeding from the nose and mouth and in a state of shock. He walked in and pushed the door open fully, holding it with his left hand to keep it open for the man who was coming out. The appellant turned his head to watch the man go by and said "are you alright?". The man shook his head, as if to clear it. He said nothing and left. The appellant then went into Uzzaman's house and in the kitchen he saw blood on the floor and blood on the walls. He asked what had happened and was told "a couple of guys had beaten somebody up".

[6] For the purposes of the appeal, a joint minute was lodged setting out agreement between the Crown and the defence as to elements of the evidence of the complainer and of the appellant, and certain other elements of the evidence at the trial.

 

Grounds of appeal

[7] Leave was granted at second sift in respect of grounds 3, 4 and 5, which are in the following terms:

"3. That the learned trial judge erred in repelling a submission made in terms of section 97A of the Criminal Procedure (Sc) Act 1995 that there was no evidence to support some part of the circumstances set out in the indictment namely -

 

a) from lines 15 to 17 - 'seize him by the body, pull him into a close there, repeatedly strike his head against a wall, push him and force him to enter the house there...and abduct him' and

b) line 23 -'repeatedly strike him on the head with a shovel or similar implement'.

 

Evidence concerning that part of libel set out in lines 15 to 17 was that these events occurred before the 'white man' arrived. The complainer stated he had been abducted about 10.30am. The 'white man' who was said to be the Appellant did not arrive until much later in the day. In respect of that part of the libel narrated in line 23 the complainer maintained in evidence that a man called Kurshid Uzzaman hit him on the head with the shovel when he hit him on the head with scissors. This occurred before the Appellant was said to have attended at the locus.

 

In repelling the section 97A submission the learned trial judge held that the fact that the complainer had stated in evidence that once he was tied to the chair he was told that a white male was coming to finish him off and a white man thereafter arrived holding a knife suggested a prearranged plan to assault the complainer. In addition the trial judge held that the fact the complainer was strapped to the chair when the white man arrived and the white man on his arrival had told the complainer to give the money stolen back indicated a pre arranged plan.

 

It is submitted that there was insufficient evidence of those parts of the libel specified in lines 15 to 17 and line 23 above namely the actual abduction of the complainer and the assaults prior to the arrival of the white man. There was insufficient evidence of actual knowledge of the Appellant of any pre arranged plan for the abduction and prior actings of the co accused and other assailants within the locus prior to his arrival. It is submitted the factors relied on by the learned trial judge were insufficient. It is submitted that the remark regarding the white man coming was made by the co accused and as such inadmissible against the Appellant. - see ground 4 below.

 

It is further submitted for the reasons outlined above that the learned trial judge erred in directing the jury that there was sufficient evidence of a prearranged plan to allow them to convict the Appellant of that part of the libel which occurred before he was said to have arrived (pages 21 and 22 of the charge).

 

4. That the learned trial judge erred in directing the jury (page 26 of the charge) that the complainer's evidence that he had been told by the second accused that a white man was coming to finish him off was evidence that could be used to determine whether or not there was a plan in which the Appellant was involved. It is submitted that a comment made by the co accused outwith the presence of the Appellant cannot be used in evidence for or against him. To use such evidence to determine whether or not there was a plan would be to use it against the Appellant. It is submitted that the learned trial judge ought to have directed the jury to ignore that piece of evidence in determining the case against the Appellant.

 

5. That the sentence imposed was excessive having regard to the following --

 

a) the deletions to the charge and the evidence as to the length of time the Appellant was at the locus. The jury found the Appellant guilty of the charge under deletion of the aggravations of severe injury and to the danger of life both of which had been deleted from the charge at the close of the Crown case. The evidence led was that the Appellant did not take part in the abduction of the complainer which occurred at approximately 10.30am nor was there any evidence to suggest he took the complainer to the locus or detained him there. It was said that the Appellant did not attend at the premises until later that date by which time the complainer had been repeatedly assaulted by persons in the house. There was no evidence to suggest that the Appellant took part in those earlier assaults.

 

b) The Appellant's personal circumstances and the terms of the social work report before the court. The Appellant was 54 years of age, had his own tenancy and was an active church member. He suffered from angina, diabetes and osteoarthritis for which he was prescribed medication. The risk assessment carried out by the social worker was discounted by the trial judge as being of little use. It is submitted that standing the Appellant's age, state of health and personal circumstances the Appellant could be said to be a low risk of committing analogous offending.

 

c) The Appellant's previous convictions. The majority of the Appellant's previous convictions were offences of dishonesty and road traffic matters prosecuted summarily. The Appellant had one previous conviction in the High Court for assault and robbery but that was 35 years ago in 1977 for which the Appellant received a sentence of 5 years imprisonment. The Appellant's last custodial sentence was in 1998. The Appellant had no matters outstanding.

 

d) Comparative justice. The learned trial judge imposed a sentence of 6 years imprisonment on the co accused Nasrullah Uzzaman and distinguished between the Appellant and his co accused on the basis of the Appellant's previous High Court conviction. It is submitted that the distinction between the Appellant and his co accused was not merited having regard to the age of the Appellant's previous conviction in 1977 and the greater role played in the commission of the offence by the co accused. Evidence was led that the co accused was responsible for the initial abduction of the complainer and his detention within the locus and that thereafter he repeatedly assaulted the complainer prior to the arrival of the Appellant.

 

It is submitted that the learned trial judge gave insufficient weight to the deletions made to the charge; the length of the time the Appellant was present at the locus; his personal circumstances; his level or of risk; the nature of his previous convictions and in particular the age of the previous High Court conviction and the extent of the involvement of the co accused in the offence and the matter of comparative justice."

 

Submissions for the appellant

[8] Ms Ogg submitted that in order to convict of the whole charge the jury would have to be satisfied that there was prior concert to abduct and assault the complainer - Kabula v HMA 1999 SCCR 348. If not, then the fact that the appellant joined in the assault where it had been started by someone else would not mean that he adopted or homologated what had gone before - McLaughlin v HMA 1991 SCCR 733. A common purpose cannot be established by evidence that the accused "may have known what the other ... might have been doing" - Khalid v HMA 1990 JC 37. In the present case, the trial judge was not wrong to look for adminicles of evidence which might support the appellant's involvement in such a prior concert. However, on a proper examination there was insufficient evidence to support this.

[9] The only factor which could possibly show the existence of a prearranged plan involving the appellant to assault the complainer were the statements made by the co‑accused to the complainer as to the white man who was coming. It was accepted that statements by a co‑accused are admissible against another in a case of concert - Hammill v HMA 1999 SCCR 384. However, the circumstances of that case were different from the present case - in Hammill, there was a sufficient body of evidence, leaving aside the remark in question, that the appellant and his co‑accused were involved in a concerted plan. There is nothing in the present case equivalent to that other evidence. As was observed in the commentary to Hammill (at page 399), "the rule that statements made by one conspirator are evidence against another relates only to statements which are part of the conspiracy". What is the evidential value of the remark about the white man coming in the present case? It would only be admissible if the parties were acting in concert. It was accepted that there was evidence that they were in acting in concert at a later stage, but there was no evidence of prior concert. The remark was required to establish concert but it could not be used to establish concert since it was not admissible in the absence of concert; the argument was a circular one. Without other adminicles of evidence pointing towards prior concert, this remark is not by itself sufficient to establish prior concert. For these reasons, although it was accepted that the appellant's conviction for the rest of the libel must stand, the conviction ought to have been under deletion of the passages in lines 15 to 17 and line 23 of the indictment, as indicated in the grounds of appeal (but with the words "and abduct him" in line 17 remaining, as it was conceded that there was sufficient evidence to enable the inference to be drawn that the appellant had associated himself with the abduction of the complainer).

[10] Ms Ogg went on to submit that the sentence of 8 years imprisonment was excessive, having regard to the factors listed in the fifth ground of appeal. The sentence was, she submitted, clearly excessive if the court was with her on her earlier submissions on concert and made the deletions to the libel which she sought. However, even if the court were to be against her on these submissions, the sentence was excessive, having regard to the deletions made at the close of the Crown case. The co‑accused was present throughout the events libelled in the indictment, and his involvement was clearly more significant than the appellant's. The trial judge placed undue weight on the appellant's previous conviction 35 years ago. Having regard to comparative justice, and all the factors set out in the grounds of appeal, the sentence imposed was excessive.

 

Submissions for the Crown

[11] The advocate depute submitted that there was sufficient evidence to allow the trial judge to repel the submission made in terms of section 97A of the 1995 Act, and the jury were entitled to infer that the appellant was involved art and part in the whole libel. The evidence about the remark by the co‑accused about a white man coming was admissible, but even if it was not, there was still sufficient to establish prior concert.

[12] The circumstances of the present case were not equivalent to a case of a person who comes across an assaulted man in the street, and proceeds to assault him in turn. The circumstances here were eloquent of a prearranged "punishment beating". When the appellant arrived in the kitchen, he arrived with a knife and he brandished it on his arrival. This demonstrated that the appellant knew of the particular address to which he had to go, and that he went there with the purpose of assaulting the complainer. It was sufficient to infer knowledge on the appellant's part that the complainer was there, and had an intention to assault him. While assaulting the complainer, the appellant said "give back the items or I'll kill you". The fact that the appellant was aware of the background was an indication that this was part of a prearranged plan, and was not a spontaneous act of violence on his arrival at the premises.

[13] It was not clear from the evidence what interval there was between the start of the torture of the complainer and the appellant's arrival - the complainer stated in evidence that he was abducted at about 10.30am, but he could not say how long he had been in the house before the appellant arrived. The jury must have rejected the appellant's exculpatory evidence and accepted that he had been in the flat. His part in the assault could not have been carried out very quickly.

[14] There were other adminicles of evidence which, the advocate depute submitted, were sufficient to support the conclusion that he was party to a prior concerted plan. He was apparently aware of the allegation that the complainer had stolen items, which had triggered the events libelled in the indictment. He arrived at the premises with a knife and immediately engaged in an assault on a man who was already tied up and had been assaulted. These adminicles would be sufficient by themselves to enable the inference of prior concert to be drawn. Taken together with the remark about the white man coming, there was clearly sufficient evidence to enable prior concert to be established. The statement was admissible. The advocate depute accepted that it might be necessary to have other prima facie evidence of concert to enable the statement to be admissible, but there was such evidence in the present case. The combination of factors on which he relied was sufficient to give rise to the inference of a prearranged plan. The statement by the co‑accused made this inference stronger.

 

Discussion

[15] Unless there is sufficient evidence of a prearranged concerted plan to assault, it is not part of our law that an accused person who subsequently assaults a complainer is criminally responsible for all assaults committed upon that complainer by others before the appellant arrives on the scene. For example, in Kabula v HMA the appellant arrived last at the scene of the attack on the deceased; by the time he arrived, the deceased had sustained the violent kicking which caused his death although he was still being punched and kicked by two of the co‑accused. The appellant himself kicked the deceased on the head or face twice while the deceased was lying on the ground. It was held that there was not sufficient evidence to entitle the jury to hold that the appellant must have seen the extreme violence to which the deceased was subjected, and which had caused his death, before he delivered the kicks he did, and that it therefore could not be affirmed that he had joined in, and taken part in, the earlier concerted attack which was delivered with the extreme violence which caused the deceased's death. The appellant's conviction for murder was quashed and a conviction for assault substituted. The court observed that that was an anxious case and a narrow one on the evidence in relation to murder, but observed (at page 355):

"So it comes to be that the only way in which the appellant can be said to have acted in concert with those who delivered the fatal violence to the deceased is if he saw them deliver that violence and, having seen that, then delivered his own kicks. Only in that way can he be said to have been part of the murderous attack on the deceased and therefore guilty of his murder."

 

[16] In McLaughlin v HMA the appellant and her husband were charged with assaulting the complainer to her severe injury and the danger of her life. The complainer gave evidence that the appellant's husband struck her one blow near the eye which rendered her unconscious and that when she regained consciousness she was being punched and kicked by both appellants. She received serious injuries, one of which, a blow to the head, was life threatening. The trial sheriff directed the jury that where a person elects to join in in support of a group of people who are attacking another person, he becomes responsible "for all that has taken place". This was held on appeal to be a misdirection. The court observed that:

"It might have been a proper direction if the sheriff's closing words had been, 'he becomes responsible for all that has taken place thereafter'. But that is not what the sheriff said. On the contrary, the sheriff appears to have been advancing a proposition that if someone joins in where an assault has already been started by someone else, he in some way adopts or homologates what has gone before. If that is what the sheriff meant, and it does indeed appear to be what he conveying to the jury, such a direction is not in accordance with our law."

 

[17] In the course of her submissions to us, Ms Ogg properly conceded that she could not seek to have the words "and abduct him" deleted him from line 17 of the indictment. To that extent she departed from the terms of her third ground of appeal. We regard that concession as well made - there was ample evidence to enable the inference to be drawn that the appellant had associated himself with the abduction of the complainer. The complainer was tied to a chair when the appellant entered the kitchen, and the appellant himself thereafter took the complainer's shoelaces and tied his legs to the chair. The evidence that the appellant was party to a concerted plan to abduct and detain the complainer was compelling.

[18] However, we consider that there is force in the submission for the appellant that there was insufficient evidence to infer that the appellant had knowledge of the other details narrated in lines 15 to 17 and 23/24 of the indictment. There was no evidence to suggest that he was present at the time of these events, nor is there evidence from which the inference can be drawn that he associated himself with them. He cannot be taken to have adopted or homologated these acts of violence towards the complainer by his own subsequent actings towards him. The factors relied on by the advocate depute in his submissions to this court support the appellant's involvement in a concerted plan to abduct the complainer, but we do not consider that they are sufficient to attach to him responsibility for the actions of others before he arrived on the scene.

[19] We shall accordingly allow the appeal against conviction to the limited extent of deleting from the libel the words "seize him by the body, pull him into a close there, repeatedly strike his head against a wall, push him and force him to enter the house there" where they appear in lines 15 to 17 of the indictment, and the words "repeatedly strike him on the head with a shovel or similar implement," where they appear in lines 23 and 24 of the indictment. Quoad ultra this conviction must stand.

[20] With regard to sentence, it is apparent that even with the deletions narrated in the preceding paragraph, this was a very serious offence which merited a significant sentence of imprisonment. However, we have reached the view that when distinguishing between the appellant and the co‑accused the trial judge attached too much weight to the appellant's previous conviction some 35 years ago, and too little weight to the greater involvement of the co‑accused in the commission of the present offence. Having regard to the deletions that we have made to the charge, we have come to the view that a sentence of 8 years imprisonment on this appellant was indeed excessive, particularly when set against the sentence of 6 years imprisonment imposed on the co‑accused. Taking account of the greater involvement of the co‑accused in this offence, but also giving due weight to the appellant's previous conviction, we consider that the appropriate sentence for the appellant is 6 years imprisonment. We shall accordingly quash the sentence of 8 years imprisonment and substitute therefor a sentence of 6 years imprisonment from 29 May 2012.