Appellant: Paterson, Solicitor Advocate; Paterson Bell

Respondent: A Miller, AD; Crown Agent

6 February 2013

Introduction
[1] The appellant appeared for trial at the High Court of Justiciary sitting at Glasgow on 22 February 2012 together with four co-accused, on an indictment which contained ten charges. For present purposes the only charges which are relevant are charges 4 and 5 which were in the following terms:

"(004) on 26 April 2012 at Flatterton Road, Greenock, you DSP did, with your face masked, while acting along with another, assault RW, c/o Strathclyde Police, Greenock, present a pole and a brick at him, demand a quantity of take-away meals from him, and did rob him of said quantity of take-away meals;

(005) on 10 June 2011 at Kylemore Terrace, Greenock, you McC, DSP, J, R and O'N, knowing that CK, then c/o Strathclyde Police, Greenock, was a witness in a criminal case against you DSP in respect of an alleged offence of assault and robbery as libelled in Charge (004) hereof, and with intent to intimidate him and prevent him from giving evidence in future criminal proceedings in relation to said alleged offence, did assault said CK, state to him that he had 'grassed', threatened with violence and challenge him to a fight, chase after him, repeatedly punch and kick him on the head and body, and strike him on the body with a knife, and all this you did with intent to pervert the course of justice and you did thus attempt to pervert the course of justice and you did murder said CK, and you DSP did previously evince malice and ill will towards said CK;

you DSP did commit this offence while on bail, having been granted bail on 21 April 2011 and 12 May 2011 both at Greenock Sheriff Court."

[2] On 9 March 2012, after the Crown closed its case, the appellant pleaded guilty to charge 4. The appellant thereafter proceeded to trial in respect inter alia of charge 5. On 16 March 2012 the jury unanimously found the appellant guilty of culpable homicide in respect of charge 5. The appellant was subsequently sentenced to detention for sixteen years and six months in cumulo in respect of all charges of which he was convicted. No appeal is taken against sentence. The appellant's co-accused McC was convicted of murder.

[3] The deceased died as a result of wounds inflicted by a knife. By their verdict the jury were clearly satisfied that the knife was wielded by McC. There was no evidence that the appellant used a knife himself against the deceased. The issue in this appeal was whether there was sufficient evidence from which it could be inferred that the appellant had acted along with McC in a concerted attack with the knowledge that a knife was to be used or was being used in the assault of the deceased.

[4] By way of background, the circumstances may be summarised as follows. The deceased had given a statement at interview to the police implicating the appellant in the assault and robbery on 26 April 2010 which was the subject of charge 4. The deceased was exposed to taunts at school about being a "grass", and he reported to his father that the appellant had said to him that the deceased "should take the rap for the robbery" and that if he, the appellant, "goes down for it" he was going to stab the deceased. He also said to him that he was a grass and that he was going to "get it".

[5] On the evening of 10 June 2011 the deceased was in the playground of a former school which had been demolished. He was in company with a group of other young men, some of whom were drinking alcohol. One of the young men (the co-accused O'N) approached the deceased, accused him of "grassing on my mate" and behaved aggressively towards him. O'N then telephoned the appellant and the phone was put on loudspeaker so that all in the group could hear the conversation. O'N asked the appellant, "Do you want me to smash him?" and the appellant replied, "Yes". There then ensued a scuffle which progressed through a lane which led into Kylemore Terrace where the serious incident occurred. When the deceased denied the accusation of being a "grass", O'N attacked him and punched him more than once.

[6] Meanwhile, the appellant and the co-accused R, J and McC, who had all been in the house of McC, having received the telephone call from O'N, called a taxi and travelled to the area of the playground. The taxi stopped to allow McC to alight earlier than the others, and then took the other three young men to the top of Burns Road where they alighted and came down Kylemore Terrace together. The trial judge in her report draws the inference from this that the group had decided to approach the scene and presumably attack the deceased, from different angles.

[7] When the appellant arrived at Kylemore Terrace he asked O'N, "Where is the wee bastard?"; O'N pointed to the deceased, and then left the scene. The appellant then said to the deceased, "You're fucking getting it". There was then a scuffle involving the deceased, the appellant, McC and another man, with punches and kicks being thrown. The evidence of the various witnesses was inevitably somewhat confused, but the trial judge narrates it in detail in her report to us. A witness spoke to the appellant and McC punching into the deceased over each other with several blows to his head, shoulder and his right side. He then heard the deceased say, "Aagh".

[8] The deceased's father arrived in response to the deceased's texted appeals for help. He stated that when he arrived in Kylemore Terrace he saw a group of four or five boys around the deceased with two behind him, pushing and punching him. He said that the appellant was right in the deceased's face. It appears that the deceased's father chased two of the boys a very short distance up the street and returned, pushing the appellant out of the way. He told him to leave his son alone. The appellant responded by telling him that he was going to stab him and that he was going to burn him out of his house. The deceased's father saw the appellant and the deceased in a clinch in the middle of the road, scuffling, and he then saw the deceased staggering back and falling with blood on his chest. The deceased's mother was also present, and the appellant returned and shouted at the deceased's father, "He's a grass. He deserves what he gets." The appellant then threatened to kill both the deceased's parents.

[9] Two witnesses spoke to what happened when the boys (including the appellant and McC) were in the house before they left by taxi for Kylemore Terrace. One of these witnesses saw McC lift something and put it up his sleeve. He said he did not know what it was, but he was sure that it was a knife because McC was standing in front of the knife block. The witness thought that McC was going to get himself into trouble. On return to the house later McC made various statements, essentially admitting that he had stabbed the deceased. In his admissions he used the word "murder". The witness stated that McC had shown him a knife, and the witness was able to describe the knife and draw a diagram of it for the police. He also stated that McC had shown him a stabbing motion.

[10] Evidence was led from the taxi driver, who took the four boys from McC's house to the top of Burns Road. They got into the car and he noticed that something was passed from one in the back to one in the front. It was McC who was sitting in the front, and the one who passed the item was the appellant. The appellant apparently said, "Does somebody want this?" as he had no zips in his jacket, and he passed something to McC. The taxi driver was unable to say what it was and surmised that it might have been cannabis. The Crown did not rely on this part of the evidence in support of its case against the appellant. The taxi driver also heard one of the boys talking about fighting and that one of them was going to hit the boy with "an upper cut". The witness spoke of the one in the front (McC) getting out of the taxi first, and one of the boys from the back of the car asking McC whether he wanted them to accompany him, but McC said, "No, yous go round the other side". The taxi driver then drove to Burns Road where he dropped off the other three boys.

[11] The appellant was interviewed by the police on 13 June 2011, accompanied by his solicitor. He denied involvement in the attack on the deceased. In summary, his position at interview was that while a fight was going on between three or four boys, he was being chased by the deceased's father down the street. He denied all contact with the deceased. When asked about the incident in the taxi where the taxi driver witnessed that something was passed in the taxi, the appellant's immediate response was, "Well that's a lie. Cos naebody even knew that anybody had, there wasnae weapons there in the taxi." The police officer then reminded the appellant that no one had mentioned weapons; the appellant's position was that he had passed his insulin pens to McC as he had no zips in his pockets while McC did have. The appellant admitted to threatening the deceased that he was going to get it if he went to court and spoke against him, but he denied any contact with the deceased and denied all knowledge of a knife.

The trial judge's summary of the basis of the Crown case on charge 5

[12] "The basis for the prosecution against the appellant on the charge of murder was, and in my view could only have been, that he had acted along with McC in the knowledge that a knife was to be used or was being used in the course of the assault. That was how I directed the jury. Clearly the jury were satisfied that he was responsible for the killing and had knowledge of the lethal weapon but the jury must have taken the view that the appellant did not have the necessary mens rea or murderous intent and convicted him only of culpable homicide. The evidence from which the jury could infer that the appellant knew of the existence of the knife and that it would be used or was being used came from the following facts. The appellant had previously threatened to stab the deceased if prosecuted for the robbery. The motive for the attack on the deceased was his, namely his intention to intimidate and exact revenge on the deceased. He arrived on the scene in the company of McC who was armed with a knife. A group of boys all arrived together, including McC and the appellant. The inference from the evidence as described above was that they intended to attack the deceased as a group. They arrived from different directions. There was evidence, as summarised, above that the appellant was seen assaulting the deceased at the same time as McC. At the scene the appellant made threats to stab and kill the deceased's father, the inference being he knew a knife had just been used in the attack. According to the evidence of Mr K senior this threat was made immediately after Mr K pushed the appellant away from his son. As the deceased is lying dying on the street and bleeding from a chest wound the appellant tells the boy's parents that he deserves what he gets as he was a grass. In his interview the appellant was clearly aware that the deceased was bleeding from a chest wound before he made the comment about deserving what he gets. The jury were directed that they could not find the appellant guilty of responsibility for the killing, either murder or culpable homicide, unless they were satisfied by corroborated evidence that he knew that a knife was being used or was to be used and that he took an active part in that attack in that knowledge."

Submissions for the appellant
[13] The solicitor advocate for the appellant submitted that the trial judge erred in repelling a no case to answer submission under section 97A of the Criminal Procedure (Scotland) Act 1995 made at the conclusion of all of the evidence, in respect, inter alia, of the charge of murder contained in charge 5 of the indictment. No appeal was taken in respect of the conviction of attempt to pervert the course of justice. It was however submitted that there was insufficient evidence in law to permit a charge of murder to go to the jury, given that there was no evidence that the appellant knew or had reason to believe that McC had a knife or that the appellant joined in the attack in the knowledge that McC had a knife in his assault upon the deceased. If there was insufficient evidence regarding the knowledge of the appellant about the knife, he could only be convicted of assault and not culpable homicide.

[14] In the written submissions for the respondent, the Crown relied on a list of adminicles of evidence which it submitted allowed an inference to be drawn that the appellant had knowledge that a knife was to be used or was being used in the assault of the deceased (see list at paragraph [15] below). Mr Paterson submitted that these did not amount to sufficient evidence to infer knowledge by the appellant that a knife was to be used or was being used. In support of this submission, he made the following points:

·       He accepted that there was evidence that the appellant made previous threats to the deceased that he would stab him if he gave evidence against him. There was no specific evidence as to the timing of these threats, although clearly they must have been made between 26 April 2010 and 10 June 2011. There was no evidence that the co-accused McC was present when these threats were made or that he was aware of them.

·       With regard to the evidence of a telephone call from O'N asking if the appellant wanted the deceased to be "smashed" and the appellant's affirmative response, this might amount to a request by the appellant that the deceased should be assaulted, but there was nothing to suggest that it should be a murderous assault.

·       Although it is clear that McC armed himself with a knife prior to leaving his flat with the appellant, and the appellant was in the flat at that time, there was no evidence that the appellant saw McC arming himself with a knife, and such evidence as there was indicated that McC hid the knife in his sleeve. Although it was accepted that the motive for the attack on the deceased was principally the appellant's, it was not disputed that the knife was wielded by McC but nobody saw the knife at the locus and nobody saw the deceased being stabbed.

·       Regarding the taxi journey, there was no evidence to the effect that either before or during this journey anything was said about stabbing or a knife, or that anyone (apart from the witness Irvine and McC himself) had seen the knife. There was clearly a concerted plan to carry out an attack on the deceased, but there was no evidence of any discussion about a murderous assault. Such discussion as there was related to "an upper cut" - ie a punch. Similarly, the fact that the appellant and his friends left their taxi at separate points was consistent with a concerted plan to carry out an assault, but there was nothing to suggest that a knife would be used or that this would be a murderous assault.

·       The only evidence about a discussion was about punching or bashing. Mr Paterson accepted that the appellant was involved with his co-accused in assaulting the deceased, but there was no evidence of anyone seeing a knife, and it was a step too far to infer that the appellant had knowledge that a knife was to be used or was being used. There was no evidence of antecedent concert, or even of spontaneous concert, involving a knife.

·       It was accepted that the appellant was involved in a continuing scuffle with the deceased after the co-accused McC was chased away; however, the appellant was arrested at the locus and no weapon was found in his possession, and it is clear that McC left the scene with the knife and thereafter showed it to Irvine. The appellant's threats to the deceased and to the deceased's father that he was going to stab them were not based on any knowledge that a knife had been used.

·       It was accepted that there was evidence that the appellant made remarks about the deceased to the deceased's parents after the assault, but these were made after McC had left with the weapon, and could not be used to infer knowledge on the part of the appellant before the attack.

Submissions for the respondent
[15] The advocate depute submitted there was sufficient evidence to allow the trial judge to repel the appellant's submission under section 97A of the 1995 Act. He relied on the adminicles of evidence listed in the written submissions for the respondent, as follows:

[16] The advocate depute submitted that juries are regularly trusted with considering the question of whether crucial inferences can be drawn from evidence heard. That was all that happened in this trial; the trial judge was correct to hold that there was sufficient evidence to allow the jury to consider whether the appropriate inference could be drawn.

[17] The exact timing of the appellant's previous threats to the deceased was not important, but what was important was that the motive for the assault on the deceased was the same as the motive for the threat to stab him. It was open to the jury to attach some weight to the fact that the appellant and McC were friends, and left together by taxi from the same flat. There was also relevant evidence that they had planned the method of assaulting the deceased, that McC alighted from the taxi earlier than the others in order to implement this plan, and that the appellant and McC assaulted the deceased together. The appellant continued to assault the deceased after McC had stopped and left. The advocate depute submitted that the evidence about the appellant's threats to stab the deceased's father, and his aggressive behaviour towards the deceased and his father, the deceased having been stabbed very shortly before this, was all relevant context for the jury to consider. The appellant's comments about the deceased deserving what he got could properly cast light on the attitude of the appellant at the time of the attack - Halliday v HM Advocate 1998 SCCR 509. It was legitimate for the jury to consider not only direct evidence about the appellant's activities during the period of the assault on the deceased, but also his words and actings before and after the crucial period, in so far as these may cast light on his state of mind at the material time. There was evidence that at the time that the appellant made the aggressive comments about stabbing, he knew that the deceased was bleeding from a wound to his chest.

[18] This was a circumstantial case, and it is inappropriate to focus on individual adminicles of evidence in isolation; it is necessary to look at the whole picture. There was no dispute about the applicable law. The advocate depute submitted that the trial judge was correct to repel the appellant's submission, there was no miscarriage of justice, and the appeal should be refused.

Discussion
[19] There is no dispute between the parties that the relevant test for concert is to be found in McKinnon v HM Advocate 2003 JC 29, 2003 SCCR 224; reference was made particularly to paras [25], [30] and [32] of the Opinion of the Court. The present case is solely concerned with the question of whether the evidence was sufficient to meet that test, and in particular whether the trial judge erred in repelling a submission in terms of section 97A of the Criminal Procedure (Scotland) Act 1995.

[20] There were several adminicles of evidence on which the Crown relied as enabling the jury to draw the inference that the appellant had knowledge that a knife was to be used or was being used in the assault of the deceased, all as set out in the written submissions for the respondent. We do not consider that it is necessary, or helpful, to consider each one of these adminicles in isolation - we agree with the submission made by the advocate depute that it is necessary, in a circumstantial case such as this, to consider the evidence as a whole and to have regard to the whole picture. We are in no doubt that there was an ample sufficiency of evidence to enable the jury to draw the necessary inference that the appellant had knowledge that a knife was to be used or was being used in the assault of the deceased. The appellant had made previous threats to stab the deceased, and the motive to stab him remained principally the appellant's. The appellant responded to the telephone call from O'N by indicating that he wanted the deceased to be "smashed". The appellant was in McC's flat when McC armed himself with a knife, and left together with McC and two others by taxi in order to carry out an assault on the deceased. There had clearly been planning as to how this assault should be implemented, as McC alighted from the taxi before the others, and the group approached the deceased from different directions and came to assault him together. There was evidence that the appellant and McC were "punching into the deceased over each other with several blows to his head, shoulder and his right side", after which the deceased was heard to say "Aagh". The appellant continued to fight with the deceased even after McC had run away. After the assault came to an end, the deceased was bleeding from a wound to his chest; the appellant was aware of this injury, and continued to make threats to the deceased and to the deceased's father, and observed to the deceased's mother "He's a grass, he deserves what he gets". The evidence of what happened once the attack was over could in our view properly be regarded as casting light on the attitude of the appellant at the time of the attack - Halliday v HM Advocate 1998 SCCR 509.

[21] The adminicles of evidence listed in the written submissions for the respondent were sufficient to enable the jury to draw the necessary inference, and the trial judge did not fall into error in repelling the submission in terms of section 97A of the 1995 Act. No issue is taken with the judge's charge to the jury. The jury went on to reach discriminating verdicts, finding the co-accused guilty of murder and the appellant guilty of culpable homicide. We do not consider that any miscarriage of justice has occurred. Accordingly, this appeal must be refused.