APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 156
Lady Smith Lord Drummond Young Lord Turnbull	Appeal No: XC114/13   OPINION OF THE COURT   delivered by LORD DRUMMOND YOUNG   in   APPEAL AGAINST CONVICTION AND SENTENCE   by   ARCHIBALD PATERSON   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

Appellant: Jackson, QC; Glancy; Paterson Bell

Respondent: Di Rollo, A.D.; Crown Agent

 

29 November 2013

 

[1] On 21 February 2013 the appellant was found guilty after trial at the High Court in Glasgow of charges of murder and an attempt to defeat the ends of justice. A co-accused, John Victor Kenna, was also convicted of both charges. The jury's verdict was unanimous in respect of each of the charges against the appellant. Their verdicts in respect of the charges against Kenna were by a majority. The present appeal relates to the first charge, which was in the following terms:

"(001) on 4 July 2012 at Flat 3/1, 15 Blairlogie Street, Glasgow, you JOHN VICTOR KENNA and ARCHIBALD PATERSON did assault John Hyndman...and did struggle with him, threaten him with a knife, punch him repeatedly on the head and body, kick and stamp repeatedly on his head and strike him on the neck with a knife or similar instrument and you did murder him".

 

The second charge was to the effect that, following the murder, the two accused dragged Mr Hyndman's body from Flat 3/1 downstairs to a half landing between floors and left him there; washed the floors of Flat 3/1 in an attempt to clean up blood; threw a jacket and certain cleaning materials, all blood-stained, from the window of Flat 3/1 into the rear common garden; washed their hands and faces to remove blood; and disposed of the knife used in the crime by means unknown.

[2] The appellant has appealed against both his conviction on the first charge and the sentence imposed by the trial judge. The appellant and Kenna were each sentenced to life imprisonment with a punishment part of 18 years in respect of the first charge. In respect of the second charge, the trial judge imposed a consecutive sentence of two years to be served at the end of the punishment part.

[3] The deceased was a 48-year-old man who died as a result of a single stab wound to his neck. He was a friend of Kenna's brother. His death occurred in the early hours of the morning of 4 July 2012 at the address libelled in the charge; this was the house occupied by the appellant. On the previous evening the appellant, Kenna and the deceased had been drinking together in licensed premises. Afterwards they went to the appellant's house with a further quantity of alcohol. At that point they appeared to be in good humour. Precise events thereafter are not known, and the case against both the appellant and Kenna was inferential. The relevant evidence was as follows.

[4] At about 3 am the downstairs neighbour of the appellant heard what he believed was a fight breaking out above him and muffled voices arguing. He later heard water running. This was entering his flat from above, near the front door. The water appeared to be dirty and bloody. The neighbour went upstairs to investigate. On his way upstairs he saw the deceased lying on the stairs with his head on the lower landing and his body and legs lying on the stairs above him. He knocked on the appellant's door and was asked in. He saw the appellant throwing pails of water on to the floor in the hall to wash blood away. He asked the appellant whether he had telephoned for an ambulance, and the appellant stated that he was dealing with it. The neighbour was aware that someone else was in the flat. He then returned to his own flat. After about 20 minutes he realized that no ambulance appeared to have been called, and he accordingly telephoned for one; the call was timed at 4.48 am. When ambulance personnel arrived along with police officers it was noted that the deceased's body was lifeless. The police entered and searched the flat upstairs; no one was present at the time. Extensive bloodstains were found, particularly in the hall and living room; blood was spattered over the walls, and smearing and drops of blood were found on the walls and the floors. The inference to be drawn from the pattern of blood distribution was that the deceased had probably been stabbed in the living room and then made his way to the hall, where he collapsed. After being further assaulted there he was then dragged out of the flat and down to the first landing, and left there. Blood footprints led to a window overlooking the back green, where the jacket of the deceased and a bloodied mop head were subsequently discovered. Two other neighbours had heard the appellant shouting, at a point after 3 am.

[5] Further evidence was led from a number of witnesses to whom each of the accused spoke at various times after the killing. In addition CCTV evidence was available to show the movements of both accused in the early hours of the morning of 4 July. One such witness, AB, gave evidence that the appellant and Kenna had visited her house on the evening of 3 July together with the deceased. All three were in good spirits. The following morning she was aware of police activity outside the close where the appellant lived, and she telephoned him out of curiosity. During the telephone call the appellant explained to her that the deceased had said something about Kenna's son's being gay and about Kenna's daughter's having been raped. He said that an argument had developed and that he had produced a knife to frighten the deceased. Kenna had then become agitated, and AB's impression from what the appellant said was that Kenna had taken the knife and stabbed the deceased. MK, the estranged wife of Kenna, stated that she had received a telephone call from him during which he stated that he had killed, or possibly murdered, someone. He stated that the incident had happened in the appellant's house.

[6] MM had been Kenna's girlfriend. Kenna and the appellant had arrived at her house at about 4.45 am, and were allowed to remain there until the following morning. At one point she had asked the appellant and Kenna where they had been; the appellant said to Kenna "Do you remember what we've done last night?" Kenna replied in the negative. The appellant then said that a fight had broken out because the deceased had called Kenna's son gay. He continued "I think he's deid. We stabbed him". In cross-examination by the solicitor advocate for Kenna MM stated that the appellant had also said "I don't know if we killed him but we stabbed him in the neck only once". AB and MM both stated that the appellant and Kenna were drunk, but the trial judge observes that the CCTV evidence tended to suggest that the men were not very drunk. Kenna made a number of other statements to witnesses to the effect that he had used a knife and killed the deceased. Members of the appellant's family gave evidence to the effect that the appellant had stated that a fight had taken place between Kenna and the deceased and that Kenna had stabbed the deceased. The appellant had explained that he had obtained a knife to warn the two men to be quiet, but Kenna had grabbed it and stabbed the deceased in the neck. The appellant also admitted punching the deceased. Finally, at his police interview the appellant stated that Kenna was arguing with the deceased because of comments made by the deceased about Kenna's son and daughter. Kenna had then snapped and stabbed the deceased through the neck with a silver knife; he did not know where the knife came from. Kenna had also kicked and stamped on the deceased. The appellant stated that he had punched the deceased a couple of times to calm the situation down. Eventually the deceased had stumbled out of the house and collapsed outside. Thereafter the appellant stated that all that he did was to try to clean up the blood, although he admitted trying to move the deceased.

[7] The deceased suffered from blunt force injuries to the head, neck and arms, and also a single stab wound to the left side of his neck, which led to his death. Kenna gave evidence. He stated that he did not remember what had occurred in the early hours of the morning, and sobered up only after his detention by police on 5 July. He stated that all that he had done was to separate the appellant and the deceased and that the knife wound had obviously been inflicted in the hall of the appellant's flat. The trial judge notes that this was not consistent with the forensic evidence. Kenna claimed that the reason for the admissions that he had made to his family and friends was that the appellant had told him what had happened in the flat. The statements that he made had, however, included considerable detail about how he had stabbed the deceased. The appellant did not give evidence.

[8] The Crown approached the case on the basis that the appellant and Kenna had acted in concert with each other. Their position was twofold. Their primary position was that Kenna had stabbed the deceased and that the appellant had acted along with him, having brought a knife into an inflamed situation where a fight was going on. The Crown's alternative approach was that the jury could not come to a view as to which of the accused had stabbed the deceased, but they could still convict both provided that they were satisfied that both were acting in concert in the use of a knife as a weapon against the deceased to cause him injury and that the mens rea for murder existed. The trial judge comments that she was unable to say whether the jury were able to come to a view as to which of the accused actually stabbed the deceased, but she observes that they clearly took the view that both men were acting in concert and were equally guilty of the stabbing and resultant death.

[9] A transcript of the Crown's speech was available to us. It is apparent from this that the advocate depute suggested to the jury that the evidence disclosed that the appellant had acted along with Kenna in a murderous assault. The appellant had actively participated in the assault and had associated himself with the common criminal purpose, which included the taking of the deceased's life or at least the obvious risk that his life might be taken. The notion of concert was described, by reference to common criminal purpose.

[10] The evidence against the appellant was then summarized. He had been responsible for the supply of the weapon, taking the knife into the living room when there was an inflamed situation there. According to statements made to his sister and to AB, he had been prepared to hold the knife to the throat of the deceased. Thus an already inflamed situation had been inflamed by the appellant's actions. A neighbour had heard the appellant's voice raised in an angry way. Reference was made to the statements that the appellant made to MM. The advocate depute then referred to the evidence of the downstairs neighbour who had encountered the deceased's body on the stairs, and it was suggested that the actings of the appellant after the stabbing, in attempting to clean up the blood, making no attempt to save the deceased's life, failing to telephone for an ambulance, and telling the neighbour that he was dealing with the matter, yielded an inference as to the appellant's state of mind at the time when he had brought the knife into the living room; the common purpose at that point was sufficient to infer concert in the murder of the deceased. After going through the evidence, the advocate depute dealt with alternative verdicts, notably culpable homicide, but submitted that the evidence showed that the appellant had knowingly participated in an assault with the use of a knife, where the use of that knife to inflict fatal violence was foreseeable. Thereafter the advocate depute dealt with the alternative case, which was based on the premise that the jury were unable to determine who had struck the fatal blow.

 

Grounds of appeal against conviction
[11] The grounds of appeal presented on behalf of the appellant related to the trial judge's charge to the jury. Initially three grounds of appeal were presented. First, it was said that that the trial judge failed to direct the jury properly as to why they could convict the co-accused Kenna of murder alone but could not convict the appellant alone of murder. Secondly, it was said that the trial judge misdirected the jury as to how, if Kenna were the person who actually delivered the fatal blow with the knife, the appellant could also be guilty of murder. Thirdly, it was said that the trial judge did not give the jury a clear direction that they could decide that both accused were acting in concert in the homicide but could convict Kenna alone of murder and the appellant only of culpable homicide. In his submissions, however, counsel for the appellant restated the grounds of appeal in a manner that combined elements of all three of the written grounds. He submitted that what was lacking in the charge was a clear direction as to what the options were if the jury concluded that Kenna was the person who wielded the knife. In particular, it was said that the trial judge had failed to state the basis on which as a non-actor the appellant could be convicted of murder. He submitted, under reference to Brown v HM Advocate, 1993 SCCR 382, that the jury should have been told that the appellant required to have "signed up" to the knife's being plunged into the back of the deceased. The jury should have been told that as a non-actor he could be convicted of culpable homicide, and why that was so. Counsel further submitted that it was important to bear in mind that the jury were laypeople. Legal concepts had to be explained to them in clear and relatively simple terms. That had not happened in the present case.

 

The trial judge's charge
[12] The trial judge's charge was delivered over two days, 20 February and 21 February 2013. On the first day she gave the standard general directions, and dealt in some detail with hearsay evidence, including particular aspects of hearsay that were relevant to the evidence led in the case. No issue is taken with this part of her directions. It should be noted, however, that the trial judge gave very clear directions (20 February 2013, pages 10-12) that the jury must be satisfied of the guilt of either or both accused beyond reasonable doubt; they were told that if they were not satisfied that the Crown had proved guilt beyond reasonable doubt, or if the jury were left with a reasonable doubt about the guilt of an accused, they must acquit. On the second day she gave directions relating to the particular facts of the case. These covered a range of issues. For present purposes, it is the directions relating to the position of each accused in the assault, concert, and culpable homicide in relation to concert that are important.

[13] In the first significant passage (21 February 2013, pages 8-9) the trial judge directed the jury that they must consider the case in respect of each accused separately and each charge separately, and must consider the evidence in respect of each accused and each charge separately because a separate verdict had to be returned on each accused and each charge. She then moved on to concert. After dealing with the general concept, she gave the jury directions to the effect that, if one person goes beyond the scope of a proposed plan, for example to commit an assault, and commits murder, the accomplice who did not share the murderous intent would only be responsible for his own actings, and not for murder. She illustrated concert with the familiar example of a bank robbery in which different individuals play different parts, and continued (21 February 2013, pages 11-14):

"So if one of the men, one of the robbers, unexpectedly pulls out a gun which the others were wholly unaware of and shoots a member of staff and kills him, then the others would not be guilty of the murder while acting along with the gunmen, because they didn't even know that the gun was there. So I think that does illustrate the concept of concert and how you can be involved in concerted guilt for an offence.

 

Now, ladies and gentlemen, there does not require to be a plan or a pre-plan, if I can call it that, to establish concert. We certainly use the terms 'common plan' or 'common criminal purpose', but there doesn't have to be a pre-plan. People don't actually have to sit down and say, 'Right, you do this, you do that, you do the next thing,' because concert can be established spontaneously and on the spur of the moment. For example, an assault occurs in the street with one man kicking another. His friend decides to join in and punches the victim while the other one's kicking him. Both, ladies and gentlemen, in that scenario, are equally guilty for the whole assault by kicking and punching. If, however, one of the group, let's say there [were] more than two, was to pull out a knife suddenly and stab the victim, then the others would not be guilty of that stabbing unless it is proved on the evidence that the others knew about the presence of the knife and knew that it would be used as a weapon against the victim to inflict injury on the victim, but, and this is important, if the others see the knife being used, even if they were unaware of it before, and if in that knowledge they carry on the assault while the knifeman is stabbing the victim, then they can... also be equally guilty of the stabbing.

 

Another example might be where one accused holds the victim down while another one's stabbing him, and if he knew the victim was being stabbed or he could see that the victim was being stabbed and still held on to the victim thus assisting the knife wielder, then he would be equally guilty of the stabbing of the victim, and if the victim died both could be found guilty of murder.

 

So, if concert is not established in any case, if art and part guilt is not established in any case, then a jury can only convict an accused of what it is proved that he himself did. So that's if... you're not satisfied that concert is proved or art and part guilt is proved, then you can only find an accused guilty of what is proved that he himself did, if anything.

 

In a case of murder, if concert is established by the Crown, so if it is proved that two or more accused were acting together in an assault which led to death, even if only one of them actually caused the fatal blow, then both or all the accused could be guilty of murder, no matter which one of them actually delivered the fatal blow or blows, providing, of course, murderous intent... is proved in respect of each of the accused".

 

In our opinion those directions provide a clear indication, with illustrations, of what is meant by concert. Moreover, it is significant that the trial judge returned to this theme later in her charge: see paragraph [16] below.

[14] Thereafter the trial judge gave a definition of murder in standard terms (pages 15-16), and the meaning of wicked recklessness was dealt with in some detail (pages 20-21). That was followed by directions on culpable homicide and assault, together with general directions as to how a verdict of culpable homicide or assault might be relevant on the particular facts of the case (pages 23-27). In particular, the trial judge stated (page 24):

"So if you're satisfied that it has been proved that the accused did assault, or either accused did assault the victim and that death did indeed follow from that but you are of the view that murder is not proved, that murderous intent on the part of an accused is not proved but something less, then you would be entitled to find the accused guilty of culpable homicide".

 

In our opinion those directions, taken as a whole, indicate the general concepts of murder and culpable homicide and the need for discriminating verdicts on this matter with quite sufficient clarity to deal with the facts of the present case.

[15] Directions were then given on a number of topics that are not directly relevant to the present appeal. The trial judge then gave express consideration to the possibility, in accordance with the first approach taken by the Crown and the submissions made on behalf of the appellant, that Kenna had stabbed the deceased, having obtained the knife from the appellant. On this, she stated (pages 45-46):

"Now, ladies and gentlemen, if you are satisfied on the evidence that Mr Kenna was indeed the stabber, if I can call him that, and that he got the knife from Mr Paterson who'd brought it into the living room prior to the stabbing to threaten and thus to assault the deceased, you could only hold Mr Paterson responsible for... the killing on an art and part basis if you are satisfied that in taking the knife into the situation, namely the fight, it was within his contemplation that the knife would be used to inflict serious injury to the deceased. If you take the view that his only involvement was to frighten the deceased and no more, and that Mr Kenna went beyond the scope of the common criminal purpose of assault, just a common assault, and he went beyond that scope in stabbing the deceased, then you could not hold Mr Paterson responsible for the killing on an art and part basis, either of murder or of culpable homicide, but you could find him guilty of whatever part of the assault you are satisfied it is proved against him as an individual, or which he undertook in concert with Mr Kenna but falling short of the use of the knife to stab the victim".

 

Counsel for the appellant submitted that it was in dealing with this specific scenario that the trial judge's directions lacked sufficient clarity. The direction just quoted was not sufficient, as it did not refer to the different kinds of killing that were possible, murder and culpable homicide.

[16] Despite this criticism, it is important in our opinion that the trial judge reverted to this issue at a later stage in her charge. This occurred when she dealt with a submission that had been made by counsel for the appellant in the following terms (page 54):

"Now, Mr Jackson submits, as in the present case, it is the first accused [Kenna] who committed the killing. It was Mr Kenna was stabbed the victim. Mr Jackson relies on the admissions made by Mr Kenna and on the detail given in the statements by Mr Kenna to various people, and you heard his detailed submissions on that evidence. Mr Jackson submits that you can only convict his client on the basis of acting in concert with Mr Kenna, who, he submits, is the man who stabbed the deceased. That, of course, only deals with the first approach of the Crown, the second being that if you do not know who inflicted the stab wound but you are satisfied that both were acting in concert in the knowledge that the lethal weapon would be used to inflict injury on the deceased, then you could find both guilty of murder, if, of course, you're satisfied that each acted with the necessary murderous intent".

 

She continued (at page 55):

"Mr Jackson submits that on this approach by the Crown, which he endorses namely that the stabber was Mr Kenna, then the question you have to ask about Mr Paterson is, and if I've quoted him correctly, 'Did he,' that is Mr Paterson, 'have in his mind or contemplation as part of the joint purpose an act with the necessary degree of wicked recklessness to find him guilty of murder?' Ladies and gentlemen, I agree with that question. That is one of the questions you have to ask when deciding whether this was murder as against this accused.

 

But Mr Jackson then goes on to say that the Crown has to prove that Mr Paterson signed up for the plunging of the knife into his neck. Well, ladies and gentlemen, that, in my view, is going too far. What the Crown has to satisfy you of in this case on the first approach by the Crown is that each man was actively involved in the assault in some way. Then the Crown has to prove that what was done in the course of the attack was within the scope of the common purpose, particularly in relation to the knife. So if you take the view that Mr Kenna was the stabber, as you are urged to do, then you have to consider whether what Mr Paterson did made him art and part guilty of the stabbing.

 

Now, I have explained what is required for concert in the general, so what you have to be satisfied of here is, on this scenario, ... that in bringing the knife into the incident, into the assault, Mr Paterson had in contemplation that the knife, a lethal weapon, would be used as a weapon against the deceased to injure him, not just to threaten him. It is not necessary for the Crown to prove that it was necessarily within the common plan specifically to stab the victim in the neck, but you must be satisfied that it was within the common purpose or the common plan to use it as a weapon to inflict injury, or serious injury, rather than just threaten. So if you can infer from the evidence, as you are urged to do, on this scenario by the Crown that the common plan was to inflict injury with the knife and then that knife wound led to death, then you could hold Mr Paterson equally responsible for the killing. If you come to that view then you have [to] decide in respect of each accused, looking at the case against each separately, whether the intent on the part of each was murderous and, if not, whether the verdict should be one of culpable homicide".

 

[17] In the first of the three paragraphs just quoted, the trial judge expressly agrees with the submission made by counsel for the appellant, namely that a crucial question was whether the appellant had in contemplation as part of the joint purpose an act with sufficient wicked recklessness to amount to murder. In his submissions on appeal, however, counsel criticized the second of those paragraphs. Under reference to Brown v HM Advocate, supra, he submitted that, while the stabbing was possibly murderous, it was likewise possible that the person who did not commit the stabbing might merely be guilty of culpable homicide. The trial judge's charge had not given sufficient weight to this possibility. In our opinion this criticism is misconceived. In the first place, it does not appear to us to be necessary if the appellant were to be guilty of murder that he should have "signed up" to a stabbing in the neck. What is required, as the trial judge indicates, is that the appellant should have participated in a concerted assault where the common purpose encompassed the possible infliction of fatal injuries, particularly by use of a knife. It is not necessary, however, that the appellant should have envisaged the use of the knife to inflict any particular injury, provided that he envisaged that it would be used in a manner that was liable to result in death. That is what the trial judge said in the third paragraph that we have quoted. In the concluding part of that paragraph she stated that if the common plan was to inflict injury with the knife in such a way that death might result, then the appellant could be equally responsible for the killing. To do that, however, it was essential to consider the case against each accused separately and in particular whether the intent of the particular accused was murderous or merely sufficient for culpable homicide.

[18] Counsel for the appellant further submitted that in these passages there was no clear direction that it was open to the jury to find Kenna guilty of murder but the appellant of culpable homicide only; that had not been spelled out. Nor was it spelled out what would make the appellant guilty of murder as against culpable homicide. In relation to this submission, it is in our opinion important to bear in mind that both murder and culpable homicide had been the subject of elaborate directions at an earlier stage in the charge, with particular reference to the state of mind that is required for each. In the passages quoted in paragraph [16] above, the trial judge was dealing with concert, and in particular the need to consider the state of mind of each accused in such a situation. Agreeing with counsel for the appellant, she emphasized the importance of considering whether the appellant had the necessary degree of wicked recklessness for murder. She concluded by emphasizing the need to look at the case against each accused separately, with particular reference to whether wicked recklessness had been proved against each of them. In our opinion that is quite sufficiently clear, particularly in conjunction with the earlier directions that had been given in the charge.

[19] Finally, we should note that towards the end of her charge the trial judge gave a number of directions that were manifestly favourable to the appellant (pages 60-62). She reminded the jury that if they believed anything that the appellant had said in his various statements, including his police interview, in which he denied that he ever had the knife, then they could not convict him of any responsibility for use of the knife and the killing. She referred to the duty to acquit if such evidence raised a reasonable doubt about the guilt of the appellant. She then referred to admissions that the appellant had made to his sister and to AB, which had been referred to by his counsel, to the effect that he had only intended to threaten the deceased with the knife. She stated that if the jury took the view that concert in the use of the weapon as an instrument to cause injury had not been proved, or if there were a reasonable doubt about that matter, the appellant could not be convicted of more than assault. She then reminded the jury of the importance of concert, and the consequences of a finding that concert was not proved (page 62):

"[In] relation to both accused; if you take the view that concert is not proved and you think that only one of the accused attacked the complainer with the knife and caused serious injuries, in other words only one of them was responsible for the use of the knife, and you're not satisfied as to the proof against either, in other words you don't know which one did it, and concert is not proved, then you would have to acquit both of the charge, at least in relation to the knife attack".

 

The trial judge then once again stated the need to consider the evidence in respect of each accused and each charge separately. The latter directions made it clear that, on the Crown's alternative approach, if the jury could not be satisfied as to which of the accused struck the blow, they could only convict if they were satisfied that the two men were acting together and that the use of a knife to inflict serious injury was within the common purpose of both. All of the foregoing directions were plainly favourable to the appellant. In our opinion they strengthen the view that the judge gave directions that were quite sufficient to enable the jury to consider the case against the appellant in a proper manner.

[20] In the course of submissions we were referred to the case of Carr v HM Advocate [2012] HCJAC 130, where it was held that directions on concert were materially inadequate. The particular basis for that finding was that no clear directions had been given on the need to find that the accused participated in a concerted attack with a murderous purpose (paragraph [7]). The trial judge in that case had not directed the jury that it was essential to identify first whether there was a common criminal purpose and secondly the extent and scope of such a purpose to which any individual accused subscribed. A general direction on mens rea was not sufficient to bring home to a jury the requirement for a common criminal purpose. Nor had the judge in that case explained to the jury that the case against each accused required to be considered separately. In our opinion those criticisms do not apply to the charge in the present case. The trial judge here gave the jury clear directions on concert in general (paragraph [13] above), including the need for a common criminal purpose, and the need to find that any individual accused had subscribed to the common criminal purpose. She further gave clear directions as to the manner in which subscribing to a common criminal purpose might apply to the appellant on the facts of the particular case (paragraph [16] above). She stated at more than one point in her charge that the case against each accused must be considered separately. For these reasons we are of opinion that the criticisms of the charge in Carr are not applicable to the present case. In Carr Lady Dorrian, who delivered the opinion of the Court, referred favourably to the approach to charging a jury in cases of concert that was approved in Cussick v HM Advocate 2001 SCCR 683. We find that the criteria set out in that case are plainly satisfied by the trial judge's charge in this case.

[21] In all the circumstances, we are of opinion that the directions given by the trial judge on the questions of murder, culpable homicide and concert were quite sufficiently detailed, and would give the jury a fully adequate understanding of the law on these matters as it applied in the facts of the present case. In particular, the passages quoted at paragraph [16] appear to us to state the legal position in an accurate and comprehensible manner. We accordingly reject the criticisms that have been made by counsel for the appellant, and we refuse the appeal against conviction.

 

Appeal against sentence
[22] The appellant has also appealed against the sentence imposed by the trial judge. Because the appellant was convicted of murder, the mandatory sentence was of life imprisonment. The trial judge imposed a punishment part of 18 years. This was challenged by counsel for the appellant. The same punishment part had been imposed on both the appellant and Kenna. Counsel submitted that a distinction should have been drawn between the two men. While on the evidence it appeared that the appellant had been responsible for production of the knife, it appeared to be Kenna who had stabbed the deceased using that knife. Consequently the position of the two men should be differentiated.

[23] In our opinion this criticism is misconceived. The jury, after being given detailed directions, concluded that both men were responsible for the murder. It was the appellant who produced the knife; if he had not done so it seems likely that the attack on the deceased would not have resulted in his death. Moreover, there was evidence that the appellant had presented the knife to the throat of the deceased. That must plainly have increased the severity of what was happening to the deceased, and could be regarded as an incitement to use the knife in a more serious manner. That is precisely what happened. Even if it was Kenna who plunged the knife into the deceased's neck, a matter that has not been definitively established, the appellant's actions in producing the knife and holding it to the deceased's throat were plainly very serious. In these circumstances we consider that the trial judge was fully entitled to take the view that the same punishment part was appropriate for both the appellant and Kenna. We note that the trial judge in her report described the assault as "a wholly unprovoked and brutal attack" on the appellant. The deceased was stabbed in the neck and effectively bled to death. He was also punched and kicked and his head and face were stamped on. The trial judge remarks that the attack began in the living room and continued into the hall. It was an extremely serious matter, a view with which we agree. Furthermore, both the appellant and Kenna dragged the deceased out of the flat when he was still bleeding. The trial judge remarks that they appear neither to have known nor to have cared whether he was alive or dead. They left him bleeding on the stairs and attempted to clean up the flat. No attempt was made by either man to call for help. In these circumstances we cannot see any ground for distinguishing the appellant and Kenna. Consequently the appeal against sentence in relation to charge 1 is refused.

[24] The appellant was convicted of a second charge, of attempting to defeat the ends of justice by taking a number of enumerated steps, including dragging the deceased's body from the flat, washing the floors of the flat to clean up blood, throwing a jacket, mop head and tissues, all blood-stained, from the window into the rear common garden, washing hands and faces to remove blood, and disposing of the knife used to commit the crime by means unknown. On these matters the trial judge sentenced the appellant to two years' imprisonment. She considered the matters libelled in the charge to be a serious matter, in that substantial steps were taken without knowing whether the deceased was alive or dead. The trial judge observed that the appellant displayed a callous attitude in relation to the deceased's body in simply abandoning it. For these reasons she made the sentence consecutive to the punishment part of the sentence for murder. For the appellant it was submitted that the actings in question were libelled for evidential purposes, to permit the Crown to lead without objection evidence of acting as by the appellant after the fatal attack. The actings in the two charges amounted to a single course of criminal conduct, and in these circumstances the sentences should not have been made consecutive. We are not impressed by these submissions. We consider that the steps taken in the present case to dispose of the evidence of the murder are significant. They displayed, as the trial judge said, a callous indifference to the fate of the deceased. If the sentence for attempting to defeat the ends of justice is not made consecutive to the sentence for murder, it will be of no practical effect. For this reason we are of opinion that the trial judge was fully entitled to make the sentence on this charge consecutive to the sentence for murder. Consequently the appeal against sentence on the second charge is refused.