Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 48

HCA/2015/2913/XC, HCA/2015/2692/XC and HCA/2015/2606/XC

 

Lord Justice General

Lord Menzies

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEALS AGAINST CONVICTION AND SENTENCE

by

(1) GARY WILLIAM SIM; (2) JAMES EDWARD WATSON; and (3) PAUL JOHN WATSON

Appellants;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant (1): McConnachie QC, P Templeton, Solicitor Advocate; Wilson McLeod

Appellant (2): Duguid QC, S Walker, Solicitor Advocate; Hughes Walker

Appellant (3): I Patterson, J Stephenson, Solicitor Advocates; Thorley Stephenson

Respondent: Niven-Smith AD; the Crown Agent

19 May 2016

Introduction
[1]        On 24 July 2015, at the High Court in Edinburgh, the appellants were convicted of a charge which libelled that:

“(2)      on 20 September 2014 at Restalrig Circus, Edinburgh you ... did assault Thomas ... Lamb ... and did repeatedly strike him on the head and body, repeatedly kick and jump on his head and body, and otherwise ... inflict blunt force trauma on his head and body, strike him on the body with a garden fork, knife, or other ... instrument, ... and you did murder him ...”.

 

The first appellant was also convicted of an earlier assault on the deceased in the Tor pub nearby.  All three appellants were sentenced to imprisonment for life, with punishment parts of 20 years.

[2]        The appeal raises a number of grounds, all of which relate to the trial judge’s directions to the jury.  This focuses attention on the general approach of the court to a judge’s charge as well as on the particular criticisms advanced.

 

The evidence
[3]        On 19 September 2014, the deceased went to the Tor pub in Restalrig.  The pub was local to the house where he stayed with his elderly father.  He consumed a considerable amount of alcohol during the course of the day.  At about 10.00pm the appellants and two others entered the pub.  They too had consumed alcohol.  The deceased was playing pool.  Sometime just before 1.00am, the first appellant disturbed the deceased’s cue.  There was a tussle and the deceased, who was of small height and build, fell down.  When he got up, the first appellant threw him violently into a pile of chairs.  The second appellant took hold of the first appellant.  The third appellant kept the parties apart.  In due course the first appellant would admit starting the fight with the deceased, whom he did not know. 

[4]        The deceased left the pub, saying “This isn’t over with”.  The first appellant followed, having been told in which direction the deceased was likely to have gone.  He alone was able to say what happened outside immediately thereafter.  He maintained that he had chased the deceased, shouting “Gie’s ma phone”, to which the deceased had responded, “Come ahead you f...ing bam”.  A fight in the street followed, during which the first appellant punched the deceased on the nose.  The deceased dropped his jacket and escaped into his house. 

[5]        The second and third appellants left the pub shortly after the first appellant; with one of them saying “Paul, where are yous” and, after the reference to the deceased’s challenge, “Gary what are you doing”.

[6]        The deceased undoubtedly went into his house.  He re-emerged with a kitchen knife and a garden fork.  Again, what happened next is uncertain.  However, somehow the deceased came to be disarmed and on the ground.  One neighbour, SS, described him lying on the road with three males, presumably the appellants, around him.  The smaller of the three (the third appellant) was holding what appeared to be a straight object, like a stick.  One of the men said, “Will I finish him off?” 

[7]        Another neighbour, RS, observed the deceased lying on his back motionless.  Three men were kicking him repeatedly “very, very hard”.  Two of them delivered five or six kicks.  He saw the three running off laughing.  Under reference to a statement, given to the police later that morning, he said that the taller of the three men (the first appellant) was “just standing”.  The first appellant had been the last to leave the victim.  One further witness, OC, also spoke to the three running off laughing.  They were “hyper” and “high fiving” each other.

[8]        Only the first appellant gave evidence in his own defence.  His testimony did not impress the judge.  His story was that, when the deceased had come out carrying the weapons, he (the first appellant) had run away.  The second and third appellants had both attacked the deceased.  The third appellant had held him in a bear hug and the second appellant had hit him with the fork.  The deceased had fallen onto his back.  Both brothers had kicked him on the head and body.  The first appellant had told them to leave him alone.  He did admit, however, that he might have kicked the deceased on the face.  It had, according to the first appellant, been the third appellant who had shouted “finish him off”.  The second appellant had then stabbed him with the fork.  The second and third appellants had run away after kicking him like a football. 

[9]        The appellants eventually reached the house of the third appellant’s girlfriend, NA, where efforts were made to clean clothing and trainers.  The third appellant had said, “Tam and Gary had a square go but [it] went too far and Gary jumped on his head”.  The first appellant had been present at the time and had displayed no reaction.

[10]      The pathology was not disputed.  The deceased had sustained blunt trauma injuries to various parts of his head and a chest wound caused by the fork.  The victim died of the blunt force trauma and the chest wound.  He would not have survived even the trauma.  The chest injury had cut the pulmonary vein and penetrated the aorta. 

[11]      The forensic evidence was that the second appellant’s Nike shoes had a pattern, which could have caused the stamping injuries on the deceased’s head.  The pattern was consistent with the impression on the deceased’s face.  The deceased’s blood was found on these shoes.

[12]      When detained, the first and second appellants gave “no comment” interviews.  Later, the second appellant had told a police officer “I tried to stop it.  Somebody must have seen it from a window ...”.  He would not elaborate on this.  The third appellant gave a “mixed” statement in which he admitted being at the locus, but denied involvement.  He blamed the first appellant.  He (the third appellant) said that he had been very drunk.  He had left the pub and had seen the first appellant fighting with the deceased.  The first appellant had knocked the deceased to the ground and was punching, kicking and “stomping” on him.  His brother had taken hold of the first appellant and told him that he was out of order.  The third appellant said that he had just run off; that is to say he had not been involved in the fight.

 

Directions to the jury
[13]     The judge said the following about concert:

“The normal point where there are several accused is individual responsibility and you've always got to keep that in mind, but in this indictment, … it is alleged, that all the accused were acting together … and this brings into play the rules of the law of concert, or, … art and part guilt, … I may use words like ‘in … concert to do this, that or other,’ or, ‘they were all in it together,’ that kind of phraseology.  It all means the same thing.

            Now, the basic rule is this, and this is very important …, ‘If two or more persons act together in pursuance of a common criminal purpose,’ …, ‘then the evidence against one becomes the evidence against the others, and if the jury is satisfied that the crime has been committed then all are guilty, though only one of them may have committed the physical act’.

            There has to be affirmative proof ... that there was a common plan to commit a crime and that the accused was party, all of them, to the common plan.  If there's no proof, if there's no plan, then it is individual responsibility.  ...  The common criminal purpose may vary.  Sometimes it is planned. … or the common criminal purpose may be spontaneous and a jury have to make inferences from the number of people, the weapons, the words used, what was seen, the behaviour before, during and after of all of those involved…. 

            And it is important, … [w]here a weapon is used, … the jury must find it established if they are finding concert that each accused knew that a weapon was being used. …  So, that is the generality.

            ... You have to ask and answer these kinds of questions; what is the scope …of the common criminal purpose?  … What is the extent of each of the accused being party to that purpose?  You may have to consider what was the quality of their presence at the relevant time.  You may have to consider whether, at the time the pitchfork was stuck into the victim, the others were kicking him or near him or around him or encouraging.  These are all matters you have to think about, ladies and gentlemen.

            You're entitled to consider, and must, indeed, consider the body.  … it is eloquent of many injuries.  You might consider the actions of the three accused before any of this happened, if you think that's important.  You have to consider words overhead or spoken.  You have to consider their behaviour at the murder scene and their behaviour afterwards.”

           

The trial judge then dealt with certain salient points from the witnesses’ testimony.  He referred to RS stating that he saw the deceased being kicked by three men, but did not repeat what RS had said later, under reference to his statement, about the taller of the men “just standing”.  He continued:

“Now, I direct you in this way; first of all, it is a large and obvious weapon in the hands of an assailant, is a garden fork, you would be entitled to infer from its size, from what was heard, that everybody knew the weapon was there.  If you hold and accept that the three of them were around him, kicking him anywhere on the head or the body and one of them used the garden fork to stab him fatally, then it matters not in this case which one of them did that.  You are entitled to convict of murder if you think they were all involved in a criminal concert to do murder …, and on the evidence I direct you that you are entitled in law, there is sufficient evidence in law that this was a murderous spontaneous concert.  Now, I say you are entitled to come to that view, you are not bound to, you are merely entitled to on the evidence.  There is sufficient evidence that all of these three acting together in a common criminal plan murdered [the deceased].”

 

[14]      When it came to the evidence of NA, the judge explained that it had been the third appellant who had used this as evidence against the first appellant by virtue of his failure to react to it.  The judge said:

“Now, the importance of that in this case is this; that it was said in the presence of [the first appellant] and she said, "He did not deny it and, indeed, he didn't react to it at all."  Now, I direct you, ladies and gentlemen, that that is competent evidence against [the first appellant]”. 

 

[15]      The second appellant had lodged a special defence of defence of another or others. Specifically, the defence had said that he had acted in defence of the first appellant, who was being attacked by the deceased with a knife, and then in defence of the deceased, who was being attacked by the first appellant with the garden fork.  He did not give evidence in support of either proposition.  The judge directed the jury as follows:

“Normally in self-defence cases where you're defending yourself you put forward the plea because you have used violence and maybe fatal violence on your attacker.  In this case it doesn't seem to be what the defence is saying, because you would have imagined in the normal case that if [the deceased] attacked Sim with a knife you would expect Watson to be saying, ‘Well, I then went and attacked [the deceased] to stop it.’  And then when we get to the end bit about Sim attacking [the deceased] with a garden fork you might expect it to be said, ‘Well, I then went and attacked Sim to stop him doing that.’  Now, I do not understand in the evidence or in the submission made to you that that was the position at all.  Precisely what the position is not wholly clear, as I will explain to you, ….

My direction is this; where any evidence in support of it has been given, either in the course of the Crown case, by the accused or any other witness led, if that evidence from whatever source is believed, or if it creates in your mind a reasonable doubt as to the guilt of the accused in the matters libelled, then the Crown case must fail and you must acquit.  Now, I repeat these words ‘where any evidence in support of it has been given’.  Now, that is vital and critical in this case.  You must not speculate about this.  You have to decide it on the evidence led.  So, that's the generality, ...”.

 

[16]      Having given the jury standard directions on self defence, including reasonable means of escape, the judge continued:

“Well, now, that's the normal case of self-defence and we now come to defence of a friend or another person, and it was said to you yesterday that it was wrong for the jury to consider means of escape.  Well, I direct you on relatively recent authority that all of these tests that I have just outlined have to be applied by the jury in defence of a friend or a third party. 

… If a man sees another being unlawfully attacked he is entitled to try to stop that unlawful attack, and if within reason he uses methods that would otherwise constitute an assault he will be excused, because his intention is not to commit a criminal assault on the victim, but to prevent the victim from carrying out an illegitimate assault on another person.  Now, that is what you have to consider and ...  in particular ... the test of whether or not you think there was cruel excess.  ...

Well, I said to you a moment ago by emphasising the words "where any evidence is led" you've got to consider what evidence has been led about this special defence on behalf of the middle accused.  Well, he has not given evidence on oath and he is perfectly entitled to take that position.  He did, however, say something to a police officer, and I'll just remind you of that, "I tried to stop it.  Somebody must have seen it from a window."  …Well, that's, I think, the only account you have from him.  On the other hand you have an account from Sim about what happened,… 

...  I'm bound to tell you that the evidence about it is thin, but there is evidence about it and I am not entitled to ask you to disregard it.  It remains a live issue before you and you must consider it with great and scrupulous care.  It's a question of fact and it's got to be left for the decision of the jury, the issue of self-defence”.

Submissions
First Appellant
[17]      The first appellant contended that the directions on concert were inadequate.  The judge had failed to direct the jury that: (a) mere presence at the scene of a crime was not sufficient to establish art and part guilt; and (b) the actings of the appellant in assaulting the deceased in the pub were not sufficient to establish such guilt.  The judge had not properly addressed the evidence of RS, notably his position in cross-examination.  It was accepted that the witness was not pressed upon this apparent contradiction in his testimony.  The judge’s error had been compounded by his reference to the jury considering whether the accused had been “near him or around him”, thus suggesting that being near the crime was sufficient for concert. 

[18]      The judge had erred in his directions concerning the evidence of NA about what had been said in the presence of the first appellant.  Although the direction, that the evidence of the appellant’s reaction was relevant, was correct, the manner in which the judge had given the direction suggested that NA’s evidence about what had been said was true and accurate.  This contrasted to the position when the judge was dealing with other statements, notably that of the third appellant to the police, made outwith the appellant’s presence.  The judge ought to have directed the jury that they would have to accept NA’s testimony as credible and reliable before going further.

 

Second Appellant
[19]      The second appellant maintained that the judge had misdirected the jury on the appellant’s special defence.  He had erroneously directed the jury that reasonable means of escape was an element in a defence involving the protection of another (Dewar v HM Advocate 2009 JC 260, at para [12]).  He had wrongly endorsed what the advocate depute had said to the jury and told them that defence counsel had been mistaken in stating that reasonable means of escape did not apply.  This had undermined the soundness of the whole defence speech by suggesting that the appellant’s defence was fundamentally flawed.

[20]      The judge had erred in stating that cruel excess barred the plea of self defence.  It was only one of a number of factors which the jury required to consider.  It was this appellant alone who had pled self defence.  It had been a misdirection in these circumstances for the judge to draw the jury’s attention to the number of injuries on the deceased in the context of cruel excess.  It was not said that this appellant had caused all of these injuries.  The deceased had already been injured by the first appellant both in and outside the pub.  In describing the evidence in support of the defence as “not wholly clear” and “thin”, the judge had misrepresented the quality and quantity of evidence in its support.  The judge, in summarising the appellant’s position, had not mentioned the special defence.  He had not referred to the appellant’s “mixed” statement about trying to stop “it”.  This was not a self serving statement, but one whose truth the jury ought to have considered.

[21]      The judge’s reference to the three appellants leaving the scene together did not accurately reflect evidence of the appellant being drunk, stumbling into a hedge and generally staggering about.  The CCTV images did not show the appellant sharing a state of exuberance with the other two appellants, but some distance behind them.  The judge erred in his report that the deceased had taken the first appellant’s mobile.  This was spoken to only by the first appellant.  It was not observed in the CCTV images of the pub.  The damaged phone, and one of the first appellant’s earrings had been found at the locus.  The first appellant had admitted stating “Come ahead you f…ing bam” (cf the evidence supra).  The judge had not mentioned several elements of his involvement, including washing off the deceased’s blood, the loss of all his clothing, and the fact that he and the second appellant wore shoes of an “identical brand”.

[22]      Under some probing from the court, it was accepted by the appellant that the only evidence supporting the special defence was his reported remark “I tried to stop it.  Somebody must have seen it from a window…”.  It was accepted also that there had been no evidence of what act of the appellant had constituted self defence, beyond his presence at the locus.

 

Third Appellant
[23]      The third appellant first returned to the evidence of NA.  He maintained that the statement made in her presence amounted to a “mixed” statement and that the judge ought to have directed the jury that they required to consider its truth in so far as it exculpated him (McCutcheon v HM Advocate 2002 SCCR 101 at para [16]; McIntosh v HM Advocate 2003 SCCR 137 at para [18]).  Whether it was a mixed statement was for the judge to have assessed (McGirr v HM Advocate 2007 JC 83).  The statement incriminated the appellant as it was an admission of presence at the locus.

[24]      The judge had erred in directing the jury that they could draw certain inferences about the number of persons involved from the short time span over which the incident took and the number of injuries sustained.  RS had said that only 2 persons had been involved and the pathologist had said that there might only have been 6 or 7 blows to cause the blunt trauma injuries.  Contrary inferences could have been drawn.  The judge had repeated the Crown’s position and advised the jury that they were entitled to convict of murder if they accepted that the appellants were all involved in concert to murder the deceased.  This was not a balanced charge (Shepherd v HM Advocate 1996 SCCR 679 at 685-686).

[25]      The judge made repeated references to there being sufficient evidence of certain matters. Sufficiency was a question of law and not one for the jury.  This was a misdirection in so far as it was unnecessary and apt to confuse the jury (cf Arefin v HM Advocate [2016] HCJAC 32, at para [13]).

[26]      The judge’s criticisms of the second appellant’s counsel relative to the meaning of self defence, in so far as relating to reasonable means of escape, had adversely affected the position of the third appellant.  The description of the defence as “thin” was prejudicial to the appellant, whose defence relied upon the position of his brother.

 

Crown
[27]      In relation to the first appellant, the charge had to be considered as a whole and not scrutinised as if it were a conveyancing document.  The judge may have had a lapsus linguae, when he spoke of the jury considering whether, at the time of the use of the fork by one of the appellants, the others were “kicking him or near him or around him or encouraging”.  The word “or” ought to have been “and”.  However, this passage had to be read in the context of the trial.  That context was that the advocate depute had made it clear to the jury that “mere presence [was] not enough” for concert and that “some degree of participation” was required.  He had repeated that several times.  The Crown were not asking for a conviction based upon presence but on participation.  That was the context of the judge’s direction that, for concert, the accused required to be a party to a common plan.

[28]      On the testimony of RS, the judge had been directing the jury specifically on concert at that point in his charge.  He had told the jury that he was going to look at “some of the evidence about this”.  He reminded them that there was a danger in him doing so and that they had to proceed upon their own recollection of the evidence, since what he was engaging in was expressly a “selective” exercise.  He specifically told the jury that the passage he was quoting was from the witness’s evidence-in-chief. 

[29]      On the issue of the statement made in the presence of the first appellant by the third appellant, the judge’s direction was given on a presupposition that the statement had been made. 

[30]      In relation to self defence, and having listened to the exchange between the court and the second appellant, the advocate depute conceded that, on “cool reflection” he had been in error in mentioning self defence at all to the jury.  The judge had made the same error, but it had been favourable to the second appellant in providing him with a defence to which he was not entitled.  There had been no evidence that this appellant had acted in self defence of either the first appellant or the deceased.  The situation was akin to that in Burgess v HM Advocate 2011 JC 32 (at paras [33]-[36]).

[31]      On the third appellant’s complaints of imbalance, there was no requirement upon a judge to refer to every point made by the defence.  The criticism had to be a substantial one, not simply that something had been missed.  The argument had to be that the whole import of the charge had been imbalanced.  That could not be said here.  The judge’s remarks on sufficiency had been qualified by a clear direction that sufficiency, in the sense of corroborated evidence, depended on the jury’s view.  He had given the jury clear directions on the division of the responsibilities between judge and jury.  No miscarriage of justice had occurred.

 

Decision
[32]      The grounds of appeal all relate to purported misdirections by the judge.  Before examining each of these in more detail, it is worth repeating certain basic propositions applicable to this type of appeal.  First, a judge’s directions must be looked at in the context of the oral tradition in which they are given as part of the trial process.  The words should not be scrutinised in isolation or as if they were part of a conveyancing document or a provision in a penal statute (Beck v HM Advocate 2013 JC 232, LJC (Carloway), delivering the Opinion of the Court, at para [40]).  Minor deviances from standard formulae will not normally be regarded as productive of miscarriages of justice, if the directions on a particular topic are, when the charge is read as a whole, clear and correct (ibid).  Secondly, where an allegation of imbalance is made, it is not sufficient, for the purposes of advancing a successful appeal, to say that a judge has failed to mention a particular point made (or perhaps one not made) by a party.  The contention must be “a substantial one… going to the whole ‘tenor’ or ‘purport’ of the charge” (Snowden v HM Advocate 2014 SCCR 663, LJC (Carloway), delivering the Opinion of the Court, at para [51], citing Scott v HM Advocate 1946 JC 90; Younas v HM Advocate 2015 JC 180, LJC (Carloway), delivering the Opinion of the Court, at para [54]).  Thirdly, a charge is not to be scrutinised as if the jury had not heard the evidence and the speeches (Keaney v HM Advocate 2015 JC 259, Lady Smith, delivering the Opinion of the Court, at para [25], citing Withers v HM Advocate 1947 JC 109).  Fourthly, it is primarily for the parties to address the jury on what parts of the evidence are, or are not, significant.  The judge does not require to conduct an independent audit of the evidence in order to extract all the points which may favour one party or the other (Younas v HM Advocate (supra) at para [56]).

[33]      The judge’s directions on concert were clear to the effect that, if the jury did not find concert established, they could only convict on the basis of individual responsibility.  For concert to be proved against a particular accused, he directed them that they had to be satisfied that it had been proved that the accused was a party to a common criminal purpose to commit the crime.  Two or more persons had to “act together in pursuance of“ that purpose.  In the case of the use of a weapon, the jury had to be satisfied that he knew that a weapon was being used.  He directed the jury that, if they held that the three appellants were around the deceased, kicking him on the head and body and one of them used the fork to stab him, then it did not matter which one of them did that.  These directions were sound.  They explained to the jury in a few straightforward, readily understood sentences just what is needed for concert to be established.  There was no need for the judge to state expressly that mere presence at the scene of the crime (or involvement in the earlier assaults in and outside the pub) was not enough.  Quite apart from the fact that his directions on being part of a common criminal plan made this clear, the Crown were not seeking a conviction based on presence, but upon the basis of the joint participation of each accused in what was undoubtedly a deadly attack. 

[34]      The judge gave the jury examples of factors which they could take into account when assessing, not concert in general but participation in the use of the fork.  He certainly told them that proximity was one of these factors.  He did not, however, say that it was sufficient on its own.  Indeed he had already made it clear that it was not.  In these circumstances, there was no misdirection on concert. 

[35]      The judge correctly described the testimony of RS when he was asked in examination-in-chief to recall what he had seen.  RS referred on several occasion to there being three men around the prone figure of the deceased.  He said that all three were kicking the deceased.  This was also what he said in his first statement to the police, shortly after the incident.  However, the advocate depute put the content of a statement taken later at Leith police station in the early hours of the morning.  In this, RS described two men doing the kicking and a third, taller, man standing not doing anything.  This difference was fixed upon in cross-examination.  The witness agreed that the contents of his statements were true.  There was then initial testimony from recall that three men had been involved in kicking the deceased and an apparent departure from that in both chief and cross in relation to the activities of one of the three.  This was a matter focused in the speeches and would have been at the forefront of the jury’s thinking.  Of course, missing from the episode seen by RS is a description of one of the assailants using the garden fork.

[36]      When the trial judge was referring to the three engaged in the kicking, he was explaining to the jury where they could find evidence that all three accused were engaged in a common adventure to attack the deceased.  He was not commenting on whether the jury should accept that evidence.  He was not attempting to analyse the whole of the witness’s testimony.  He had made it clear to the jury that that was the exercise which they required to carry out.  There is no basis for a contention that the jury could in some way have forgotten about the content of RS’s statements and what appears to have been a change in his account as his time in the witness box went by.

[37]      The directions about the statement made by the third appellant about the first appellant’s involvement in assaulting the deceased were correct.  The judge told the jury that the fact that the first appellant had not reacted, when effectively being accused of being involved in the attack, could be used as evidence against him.  The context of this direction is important.  The judge was giving the jury a direction on what, as a matter of law, they could make of this passage.  The direction proceeds on an assumption that the jury accepted that the statement had been made (and, for that matter, that there had been no reaction to it).  There is nothing implicit in the direction that the jury required to accept that the statement (and non-reaction) were established.  Those matters were covered by the standard directions on evidence.  The statement was spoken to by the third appellant’s girlfriend and the non-reaction was incriminatory of the first appellant.  The jury would, obviously, have had to have considered whether they accepted that the statement (and non-reaction) actually occurred.  There is no reason to suppose that they did not do so.  For all these reasons, the appeal against conviction by the first appellant is refused.

[38]      The complaint of the second appellant about the judge’s treatment of his special defence of self defence can be dealt with in short compass.  There was no evidence at all to support this defence.  It should have been withdrawn from the jury’s consideration.  In that regard, the judge’s caution in allowing the defence to be considered weighed heavily in the second appellant’s favour.

[39]      The special defence stated first that the appellant had acted in defence of the first appellant who was being attacked by the deceased.  That at least makes sense.  It then went on to say that he was acting in defence of the deceased who was being attacked by the first appellant.  As a defence to the charge of murdering the deceased, this is entirely baffling as a concept.  Except in cases where there are multiple complainers or deceased persons, for there to be self defence, there requires to be evidence that an accused struck some form of blow against the complainer or deceased, which is reflected in the charge against him and about which he pleads self defence.  It is not possible in a single complainer/deceased case to aver self defence by attacking a third party.

[40]      The appellant did not give evidence.  He did not provide a statement, in which he admitted striking any blow at all, far less one in self defence.  The only blows struck by him, which were spoken to by the witnesses in the Crown case, were repeated kicks when the deceased was lying prone on the ground.  Alternatively, according to the first appellant, there was an attack on the deceased by the two brothers culminating in the appellant striking the deceased with the fork, whilst his brother held the deceased in a bear hug.  On no conceivable interpretation of any of the testimony could the appellant’s actions be classified as self defence.  The statement that he tried to “stop it”, cannot be construed as meaning that he acted in self defence.  It follows that, no matter how the judge put the matter to the jury, no miscarriage can be seen to have occurred, since there ought to have been no direction at all other than one that self defence was not an option open to the jury on the evidence.  In this respect the case bears some similarity to Burgess v HM Advocate 2011 JC 32 (Lord Carloway at paras [34]-[36]).

[41]      It is clear from his charge that the judge was less than convinced about the validity of allowing the special defence to go to the jury.  His repeated references seeking to focus the jury’s attention on the evidence reflect this, as does his description of that evidence as “thin”.  His caution is understandable in the context of a live trial, but with the benefit of hindsight, which an appellate court has, that caution was misplaced.

[42]      The remainder of the criticisms made of the charge by the second appellant are without substance.  As outlined above, it is simply not enough, when alleging a miscarriage of justice, merely to point to the fact that the judge did, or did not, mention a piece of evidence  for or against an appellant.  There was no requirement on the judge to rehearse what the defence would recently have addressed the jury about; notably elements specifically pointing to the first appellant’s guilt.  It seems clear that the jury did have regard to many of these elements.  The appeal against conviction by the second appellant is also refused.

[43]      The problem of what constitutes a mixed statement is bound to arise when the law of evidence attributes different values to different types of statement depending upon whether they are classified as exculpatory, incriminatory or “mixed”.  The proposition that a statement can be regarded as mixed simply where an accused puts himself in the vicinity of a crime, or even at the precise locus, yet states that he was not involved in that crime, remains a difficult one.  No doubt, it may depend on the circumstances.  Without engaging on a further in-depth analysis of this difficult area (cf The Carloway Review paras 7.4 et seq), in view of its imminent disappearance in relation to responses to police questioning (Criminal Justice (Scotland) Act 2016 s 109 introducing s 261ZA into the Criminal Procedure (Scotland) Act 1995), it is sufficient to say, first, that the statement allegedly made by the third appellant about the first appellant’s involvement did not contain any incriminatory material which would have rendered it “mixed”.  The purpose of the Crown leading it does not appear to have been so much to demonstrate the case against this appellant as to prove that against the first appellant.  Whether that is so or not, the statement said nothing of the third appellant’s involvement in the crime libelled.  That was the view of the trial judge.  It was one which he was entitled to reach in the circumstances (McGirr v HM Advocate 2007 JC 83, LJC (Gill) at para [12]).  Secondly, even if it were correctly classified as mixed, its significance, so far as the third appellant’s involvement in the crime is concerned, is so minor that it is impossible to assert that a direction that it could be used as proof of fact in the case against him could have had any material bearing on the outcome of the trial.

[44]      As with many of the subsidiary contentions of the second appellant, the remainder of the third appellant’s criticisms are, if not nit picking, attacks on selective pieces of the charge which, when the directions are seen in context, have no substance.  The judge made it clear that the evidence was for the jury to assess.  When he referred to a piece of evidence, he was doing so not in order to convince the jury of its worth, but to explain how the law applied to the case and how the jury might go about their task.  There is, in particular, no basis for any contention that there was an imbalance going to the whole “tenor” or “purport” of the charge.  Rather, the charge, when read as a whole, is a reasonably balanced one in conventional terms, with helpful added explanatory quotations.

[45]      Where the judge talked of there being a sufficiency of evidence in relation to a particular matter, his meaning was made clear.  His statements cannot be regarded as confusing (Arefin v HM Advocate [2016] HCJAC 32, LJG (Carloway) at para [13].  Any legal sufficiency did not detract from the jury’s task of assessing matters of credibility and reliability and determining the facts based upon evidence acceptable to the jury. The third appellant’s appeal against conviction is accordingly also refused.

 

Sentence
[46]      All three appellants appealed against the length of the punishment parts of 20 years.  The first appellant emphasised that the deceased had emerged from a position of safety armed with the fork and knife.  There had been no pre-meditation.  This appellant had no previous convictions for violence.  He had not served a custodial sentence.  His co-appellants did have significant convictions.  Both had served lengthy terms of imprisonment.  The principle of comparative justice required that the appellant be given a lesser punishment part.

[47]      The second appellant maintained that the judge had not placed sufficient weight upon the deceased’s actings in bringing about the fight.  The deceased had armed himself and approached all three appellants, who had already passed his house entrance on the way to that of the third appellant.  SS had spoken to the deceased coming out of the path from his door and turning that way.  The appellant’s presence at the scene of the crime was initially as a peacemaker.  He was heard to say “just leave it” as the first appellant followed the deceased to his home.

[48]      The third appellant accepted that he had convictions for assault and robbery in 2004 and assault to severe injury in 2009.  Nevertheless the judge had failed to place sufficient weight on the deceased’s own actings.

[49]      This was, as the judge reports, a “wanton and cruel murder” on an individual who had been out celebrating his birthday.  Although the first appellant does not have as significant a criminal record as his co-appellants, it was he who started the trouble by interfering with the deceased’s pool cue.  He then assaulted the deceased, both inside and outside the pub, before participating in the murder itself, perpetrated when the deceased lay helpless on the ground.  In so far as the actions of the deceased involved arming himself, the jury rejected the plea of provocation.  That is significant.

[50]      But for the first appellant’s earlier involvement with the deceased, there may have been merit in distinguishing the sentences on the basis of record.  Having regard to that involvement, the judge was entitled not to distinguish between each appellant in selecting the appropriate punishment parts.

[51]      The second and third appellants have significant records.  The second appellant has convictions for robbery, violence and the possession of weapons.  The third appellant has similar convictions including those for assault and robbery, assault and public disorder.  In 2009 he was convicted of two charges of assault to severe injury and was imprisoned for 30 months with a Supervised Release Order attached.

[52]      The punishment parts selected were, as the trial judge himself described them, severe. However, there was good reason for that having regard to the violence used.  They cannot be described as excessive.  The appeals against sentence are refused.