APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Nimmo Smith
Lord Kingarth
Lord Mackay of
Drumadoon
|
[2008] HCJAC 45
Appeal Nos: XC614/05 and XC602/05
OPINION OF THE COURT
delivered by LORD NIMMO SMITH
in
APPEALS AGAINST CONVICTION
by
MARK KELBIE
First Appellant;
and
THOMAS TAMS
Second Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent.
|
Act: Shead, McKenzie; Belmonte
& Co
Act: Gilchrist, QC; Beaumont & Co
Alt: Prentice, AD; Crown Agent
21 August 2008
Introduction
[1] The first
named appellant, Mark Kelbie ("Kelbie"), and the second named appellant, Thomas
Tams ("Tams"), have both appealed against their conviction at a sitting of the
High Court in Edinburgh on 6 July 2005 of a charge of attempted
murder. That charge was charge 3 in the
indictment and was in the following terms:
"[O]n 6 February 2005 at 30 Niddrie
Marischal Gardens, Edinburgh, you ... did whilst acting along with another
assault John Rush ["Rush"], c/o Lothian & Borders Police, Edinburgh and
repeatedly strike him on the head and body with a wooden implement, repeatedly
punch him on the head and body all to his severe injury, permanent impairment,
permanent disfigurement and to the danger of his life and did attempt to murder
him".
Kelbie was in addition convicted of a bail aggravation.
[2] We shall call
the person referred to as "another" in the charge as JM. The intention of the Crown had originally
been to bring JM to trial on the same indictment, but there was a defect in the
service of the indictment upon him and it was not possible to proceed to trial
against him at the same time as the trial of the appellants. We understand that proceedings against JM
have not yet been concluded, hence the need for anonymisation.
[3] In addition
to the charge of which they were convicted, the appellants also faced two
charges alleging that on the same date and at the same address they, whilst
acting along with another, (1) assaulted William McKenzie Ross ("Ross") by
repeatedly striking him on the head and body with a piece of wood or similar
instrument to his severe injury, and (2) assaulted David McDonald Cairns
("Cairns") by repeatedly striking him with a piece of wood or similar
instrument to his severe injury and permanent disfigurement. As with charge 3, the other person referred
to in charges 1 and 2 was JM. At the
close of the Crown case the trial judge sustained submissions of no case to
answer in respect of these two charges and both appellants were accordingly
acquitted of them.
The circumstances of
the offence
[4] It was not in dispute that the evidence led at the trial was
sufficient to establish that Rush was the victim of a serious assault on the
date and at the address libelled in charge 3. After being assaulted he was taken to
Edinburgh Royal Infirmary, and was transferred from there to the Western General Hospital, Edinburgh.
[5] Evidence was
given by a consultant anaesthetist and intensive care consultant at the
Western General Hospital, who was in the team which had cared for Rush in the
intensive care unit. He had been found
unconscious with a Glasgow Coma Score of 3 indicating that he was deeply
unconscious. Externally there were marks
all over his head. He had cuts above and
below his eye, abrasions to the left parietal region, swelling behind the left
and right mastoid bone, on the right temple and on the right mandible and he
had a swollen arm. A CT scan
showed a large right subdural haematoma and swelling across the brain. This was a substantial primary brain injury
which was life threatening. He also had
an injury to the left side of the brain consistent with the abrasions on the
left side of his head. The fractures of
the right and left mastoid bones would have required separate impact injuries. He also had a fracture of the right mandible
and his teeth had been knocked out. He
had a cut on his lip and below his chin to the right. He had a fracture of the ulna consistent with
a single blow. There was bruising to his
right shoulder. His injuries were
indicative of blunt blows to the front and the back of his head, his right
shoulder and his left forearm. They were
not consistent with a single fall. The
witness was still involved in the care of the patient. His condition was very poor. He was in a vegetative state and the
prognosis was poor. There was still a
risk that he could die from his injuries.
Obviously, he was
unfit to give any statement following the assault or to give evidence at the
trial.
[6] Professor
Busuttil, who had reviewed the medical records, gave expert evidence about the
cause of these injuries. In his opinion,
it was most likely that Rush had been struck a number of times with a blunt
instrument. There had been at least
three impacts to the top of his head and two to the lower part of his
head. The witness did not think it very
likely that the injuries had been inflicted by punches, although this was a
possibility if the assailant was a trained boxer (as Kelbie was). He rejected the possibility that Rush had
been punched and had then been injured by falling against a table: this could have caused some of the injuries,
but could not have produced the subdural haemorrhage.
[7] Evidence was
led from a forensic scientist, Mahasweta Roy, about a number of bloodstains
found within Rush's house. It could be
inferred from these that Rush was assaulted in an upstairs bedroom. There were no bloodstains to suggest that he
was assaulted in any other part of the house.
She gave evidence that minute blood stains in the form of a spray can
only travel about one metre before falling.
Another forensic scientist, Juliet Riches, gave evidence that a
small bloodstain on one of JM's shoes showed a positive reaction for blood,
which yielded a partial match with Rush's DNA.
[8] One
of the principal issues at the trial was therefore whether the Crown had
succeeded on proving that each of the appellants was implicated in this assault
and, if so, to what extent. By their
verdict, the jury held it proved that each was implicated, while acting in concert,
in the commission of an assault amounting to attempted murder.
The appeals to this
court
[9] Both appellants have appealed against
conviction on a number of grounds. The
appeals were heard in two stages.
In the first stage a differently constituted bench (the late Lord
Macfadyen, Lord Nimmo Smith and Lord Kingarth) heard submissions on behalf of
both appellants on a ground of appeal directed to a passage in the trial
judge's charge to the jury which allegedly constituted a misdirection. This passage related to the need for the jury
to distinguish what a witness was saying from his own recollection from what he
was saying on the basis of hearsay.
There were numerous passages in which two witnesses in particular (Wood
and Robertson, referred to below) admitted saying certain things to the police,
but claimed that they did so on the basis of hearsay. The direction related to the need for the
jury to decide, in light of this, what parts of the evidence were based on a
witness's own recollection and what parts were based on hearsay, before proceeding,
in the case of the former, to decide whether or not to accept that
evidence. On 12 June 2007, having
considered the submissions of counsel, the court held that the passage in
question, when read in the context of the trial judge's charge as a whole, did
not constitute any misdirection and accordingly refused the appeals to that
extent. No opinion was issued.
[10] In these
circumstances, we proceed on the basis that the trial judge's charge contained
full and accurate directions to the jury about what did and did not constitute
evidence and how they should approach the evidence of each witness.
[11] The remaining
grounds of appeal can be stated succinctly, to the following effect:
(1) Each appellant argues that there was
insufficient evidence in law to
entitle the jury to convict him of charge 3, and the trial judge
accordingly erred in repelling the submission of no case to answer in respect
of that charge;
(2) Each appellant also argues that in any
event the nature of the evidence
was such that no reasonable jury, properly directed, could have convicted him
and that the trial judge ought accordingly to have withdrawn the charge from
the jury's consideration.
(3) In addition there is a ground of appeal
for Tams to the effect that, if he
was involved in a concerted assault upon Rush, there was insufficient evidence
to establish that he was party to a murderous attack, and ought therefore not
to have been convicted of attempted murder.
[12] In these
circumstances, it is appropriate that we give some account of the evidence
relied upon by the Crown as implicating each of Kelbie and Tams in the assault
on Rush, and of the view which the trial judge took of it in the context of the
submissions of no case to answer in respect of charge 3.
Evidence implicating
the appellants in the commission of the offence
[13] As
will be seen, the principal evidence implicating Kelbie and Tams in the
commission of the offence came from Kevin Wood ("Wood") and Derek Robertson
("Robertson"). The trial judge states in
his report to this court that both of these witnesses were reluctant
witnesses. In respect of each of them
warnings about perjury and prevarication required to be given. Extensive reference was made in the evidence
of each of them to statements made by him to the police. Each of them accepted in turn that he had
said certain things to the police, and that they were true. Each also denied saying certain other things
to the police. Each admitted saying
certain other things to the police, but denied that they were true.
[14] The trial
judge has provided a comprehensive summary of the evidence, which counsel for
both appellants accepted was accurate except in one detail (which we notice
below, at the end of paragraph [17]).
Notwithstanding this, Mr Shead, on behalf of Kelbie, took us
through a transcript of the evidence.
This exercise served little purpose other than to confirm the accuracy
of the trial judge's summary. What
follows is therefore an adaptation of that summary, in particular those passages,
relied on by the Crown, in which the witnesses either gave direct evidence or
accepted that they had said particular things to the police and that they were
true. (In the course of the hearing
before us the expression that counsel used for the latter process was that the
statements in question were "adopted".
We do not need to decide whether that is the correct expression: what
matters is that a witness who assents to the truth of a proposition relating to
a matter of fact within his knowledge thereby makes that part of his evidence.)
Kevin Wood
[15] Wood's initial account in giving evidence was that on the night
in question he was in his house at 30 Niddrie Marischal Gardens, Edinburgh with
Robertson. They were upstairs
in Wood's bedroom smoking heroin.
Kelbie, Tams and JM were downstairs in the livingroom having a
drink. Rush came to the house and came
upstairs to the bedroom. Rush, Wood and
Robertson were sitting in the bedroom talking for about half an hour. Thereafter Kelbie came into the bedroom and
there was an argument between him and Rush followed by a scuffle between
them. They were separated by
others. Wood thought that Tams and JM
came into the room and pulled Kelbie off Rush, and that Ross and Cairns were
standing at the bedroom door. Wood had
been aware that Ross and Cairns were also
in his house because he had gone downstairs earlier and noticed them in the
livingroom. After Kelbie was pulled away
from Rush, he, Tams, Muldoon, Ross and Cairns all went
downstairs, leaving Rush in the bedroom with Wood and Robertson. After some time, Kelbie came back into the bedroom and he and Rush started
arguing again. There was a scuffle
following which Rush fell to the ground and hit his head on a table as he
fell. The scuffle had lasted about a
couple of minutes. Wood maintained that
only he and Robertson were in the room apart from Kelbie and Rush. He did not see anything in anybody's hand. Rush just fell and hit his head off the
table. Wood telephoned for an
ambulance. Kelbie left the room.
[16] When pressed about this account, Wood accepted that Rush
was gravely injured and that he sustained his injuries in his house when was
present. He admitted that he had given a
number of statements to the police about what had happened and that he had
signed the statements. He accepted that in
one statement, which he gave on 8 February
2005 (Crown production 34), he told the police that on the
first occasion Kelbie came into the room he punched Rush on the mouth and
that was true. He confirmed that he told
the police that Kelbie had a telephone in his hand and that was also true. He confirmed that he told them that Kelbie
went up to Rush and slapped him on the face and that was true. He confirmed that he told the police
that Rush tried to push Kelbie against a wall and that at that point Tams,
Muldoon, Cairns and Ross
came into the room and that was true. He
confirmed that he told them that Ross and Cairns tried to
separate the fight and that was true.
After some prevarication on his part, he was shown the video recording
of his interview and thereafter accepted that he told the police that Tams said
"Gie him it" and that Tams as well as Kelbie punched Rush, and confirmed
that was true.
[17] After further prevarication, and following a break, Wood
confirmed that he did tell the police that thereafter Kelbie came back into the
room followed by Tams and JM, and that was true. He accepted that he told the police that, as
soon as they came up the stairs, they came bursting in and there was "an almighty
rammy", and that was true. He maintained
that he did not tell the police that as soon as he got into the room Kelbie
hit Rush over the head a few times with a stick. Under reference to another earlier statement,
which he had given on 6 February 2005 (Crown production 32), Wood
admitted telling the police that as soon as they came upstairs they came
bursting into the bedroom and that Kelbie had a big stick, three feet long,
like a table leg, and they all set about Rush. Although he said these things to the police
they were not true. He told the police
that it was a frenzied attack but that was not true. He told the police that Kelbie set about
Rush's head with the stick but it was not true.
He told the police that Kelbie was like a madman on the loose but that
was not true. He told the police that
Kelbie stamped on the Rush's head but that was not true. He was unable to explain why he told these
lies. Thereafter he stated that he could
not remember saying that and could offer no explanation for initially saying
that he did not say it. He finally
accepted that he did say those words but maintained that it was not true. He accepted that he told the police that
Kelbie hit Rush all over the body with the stick and that he was stamping on
his head but maintained that was not true.
He admitted telling the police that Rush was covered in blood and that
was true. He admitted telling the police
that Kelbie was saying to Rush "I've left you on your knees before", and
confirmed that was true. (Although, as
was submitted before us, it is perhaps not clear that Wood's reference to
persons bursting into the room or to a "rammy" related to what might be called
the second incident, we consider that it was open to the jury, as the trial
judge also thought, to understand from the context that the witness was indeed
referring to that incident. We do not,
however, regard the answer to the question of the sufficiency of evidence
against either appellant to be dependent on that.)
Derek
Robertson
[18] Robertson was
described by the trial judge as "extremely vague" at the commencement of his
evidence. He identified Kelbie and Tams
but stated that he did not know who had been in Wood's house apart from himself
and Wood. Despite saying this, he
confirmed that Rush came upstairs at a time when Robertson and Wood were in one
of the bedrooms. Robertson had been
taking crack cocaine and heroin.
When Rush came upstairs Robertson had a chat with him. He testified that Rush left the bedroom and
that was the last that Robertson saw of him until he heard something and then
saw Rush who was covered in blood.
Rush came back upstairs and fell back into the room that Robertson
and Wood were in. This was no
longer than five minutes after Rush had left the room. He had been coming upstairs and fell at the
top step and he must have fallen into the bedroom. Robertson saw him fall. He was lying on the floor and Robertson
helped him. He said that he did not see
anyone else there.
[19] When asked about his prior statements to the police Robertson
stated that he told the police that he did not know anything but they were not
listening to him. He had been smoking
crack cocaine for four days and did not know where he was. He told the police that he and Wood had a
burn of heroin. Although he told the
police that his memory was fine that was not true. He told the police that to get out of the
police station. He was in a bad state
and would have told the police anything to get out for more drugs.
[20] The witness confirmed, however, that he told the police that
Rush came to the house, and that was true.
Later in his evidence he confirmed that he told the police that Kelbie
and Rush started to argue with each other and that was true. He said that there was a slight argument. He confirmed that Tams and JM came upstairs
and that he told the police that "JM and Thomas were standing at the bedroom
door on the stair landing." He confirmed
that it was true. He confirmed that he
told the police that at that time the argument seemed to get worse and that was
true. He told the police that Kelbie
punched Rush on the face but in evidence he said that he never saw
that. He was referred to the following passage
in one statement:
"At this
point William Ross and Caiggs [Cairns] came up to
the bedroom and came into the room. John
was being attacked by Mark, Thomas and [JM].
William and Caiggs pulled the three of them out the way and got in front
of John to shield him from their blows.
It all calmed down. Mark, Thomas
and JM walked out of the room and down the stairs into the livingroom. They were shouting at John, Caiggs and
David."
In relation to that passage he
confirmed that it was true that Cairns came up to
the bedroom and into the room. He
confirmed that he had told the police that Rush was being attacked by Kelbie,
Tams and JM and that Ross and Cairns pulled the three of them out the way and
got in front of Rush to shield him from their blows. His position in relation to that matter was that
he was not sure if it was true. Thereafter
he changed his position saying that it was not true. It was true that Kelbie, Tams and JM walked
out of the room and downstairs, and that they were shouting. He confirmed that he told the police that Cairns closed the
bedroom door as he left the room leaving "Woody, John and I [sic] in the room". That might be true but the witness could not
remember. He confirmed that he told the
police that Rush was fine and did not appear to be injured, but went into the
upstairs toilet next to the bedroom to check if he was bleeding, and this was
true.
[21] Robertson confirmed that he told the police that after this he
heard banging, shouting, swearing and a lot of commotion downstairs and that
was true. He admitted saying to the
police "I could see the top of the banister at the top of the stairs," and it
could be true. He confirmed that he said
to the police:
"I then saw
John, who had come from the bathroom. He
was standing at the top of the stairs.
He was looking downstairs, probably because the disturbance or commotion
was still ongoing at this time."
He confirmed that this was
true. It was true that John was looking
downstairs. He admitted that he saw Tams
at the top of the stairs, but said that he could not see anything in his
hands. He accepted that Tams might have
had something in his hands. In that
regard he admitted saying to the police:
"At this point I heard John shout 'Get that bat down, you little cunt'". When he told the police that, it was
true. He admitted telling the police
that Tams swung the bat at Rush, who was still on the landing, but testified
that he had put that passage in because the police did not believe what he was
telling them. He admitted hearing
constant banging. He told the police the
truth when he saw Kelbie and JM coming up the stairs behind Tams. He lied to the police when he told them that
Tams swung something at Rush and when he told the police that Kelbie took the
bat from Tams. He did not see Kelbie
swinging a bat that night. He told the
police that Rush could have been getting hit but he was unable to say that was
the case. Whatever happened it happened
very quickly. He claimed that the door
was closed and he could not see who was attacking Rush. Rush fell into the room with his feet just
inside the door. He pulled Rush further
into the room and closed the door.
Whoever had been at the top of the stairs had left. He confirmed that at that point Kelbie
shouted to him and Wood "Get that cleaned up."
He told the police that and it was true.
Although he maintained that he never saw Rush being struck he confirmed
that there was an assault upon him at the top of the stairs. There was a lot of banging and Rush fell
backwards onto the floor of the bedroom.
Robertson maintained that when Kelbie shouted "Get that cleaned up", he
was not referring to blood: he did not know what he was referring to.
William
Ross
[22] Ross said that on 5 February
2005 he had been in the company of Cairns and other
people. At some point he was in the
company of Rush. Later in the evening he
was with Cairns and Rush
and they ended up at Wood's house. When
they arrived there he and Cairns went into
the livingroom for a drink and Rush went upstairs. When he went into the livingroom there were
about three or four people there whom he did not know. When he and Cairns were
drinking they heard a disturbance upstairs.
He and Cairns ran
upstairs and went into a bedroom where Rush and "another guy were holding each
other at arms' length". He got in
between them and the other man ran downstairs.
He and Cairns went
downstairs. When they did so he noticed
that the front door was open. He went
into the livingroom. Nobody else was
there. As he turned to go into the
livingroom he felt a blow on the side of his chin and that was his last
recollection. He regained
consciousness. Cairns was lying
on the livingroom floor opposite him. He
was not moving. He tried to waken
him. He managed to get him to his feet
and took him to his house. Rush did not
have any injuries when he last saw him.
When he saw the injuries to Cairns he thought
that it looked like he had been struck by a baseball bat.
David Cairns
[23] Cairns confirmed that he had been in the company of Ross
and Rush and that they ended up at Wood's house. When he and the others went into the
livingroom there were four other people there.
He did not know them. They were
sitting drinking. Cairns poured
himself a drink. Rush went
upstairs. After about 10 minutes he
heard a skirmish upstairs. By then all
four people from the livingroom, including Wood, had gone upstairs. When Cairns went
upstairs everything had calmed down. The
people from the livingroom other than Wood were coming downstairs. Cairns also went
downstairs leaving Rush and Wood in the bedroom. At that point Rush did not appear to be
injured. Cairns went back
into the livingroom and was sitting finishing his drink when he was struck on
the head and knocked out. He was helped
to Ross's house from where he was taken by ambulance to hospital. He could not identify his attacker.
The trial judge's
assessment of the evidence
[24] In his report to this court, the trial
judge explains the basis on which he concluded that there was sufficient
evidence in the Crown case, taken at its highest, to entitle the jury to convict
each of Kelbie and Tams of charge 3, and accordingly repelled the
submissions of no case to answer for each of them. It seemed to him that where a
witness gave differing accounts in the course of his evidence it was for the
jury to evaluate the evidence and to determine which version, if any, they
accepted.
[25] There was no dispute that on the date libelled Kelbie, Tams and
JM were in the livingroom of Wood's house when Ross, Cairns and Rush
arrived there. It also seemed clear
that Rush went upstairs to the bedroom leaving Ross and Cairns in the
livingroom with the others. When Rush
was in the bedroom Kelbie also went upstairs and there was an altercation
between him and Rush, as a result of which there was a scuffle between them. Others intervened to separate them. Thereafter Kelbie, Tams and JM went
downstairs followed by Ross and Cairns, again
leaving Rush in the bedroom with Wood and Robertson. At that time despite the struggle between
Rush and Kelbie, Rush was uninjured.
When Ross and Cairns got
downstairs Kelbie, Tams and JM had left the house and the door was open. At some point thereafter, Ross and Cairns were
assaulted and rendered unconscious. Ross
thought he had been hit by a baseball bat and Cairns's injuries
were consistent with his having been struck with a piece of wood. Kelbie's house was about 800 metres away from
the locus.
[26] Although he sustained submissions on behalf of Kelbie and Tams
that there was no case to answer in respect of either charge 1 or
charge 2, the trial judge took the view that the evidence in relation to
these charges might still be relevant for the jury's consideration of
charge 3. There was no evidence to
identify the assailant or assailants in these charges but he considered that
the jury could take into account the evidence of the sound of banging
downstairs after the first incident.
[27] Wood confirmed that he told the police that after the first
incident Kelbie came upstairs with the other two and he stated that was
true. Although he told the police that
he did not know who they were he did know: his evidence was that Kelbie was
followed by Tams and JM. As soon as they
came upstairs they came bursting into the room.
At the end of the incident Rush was covered in blood and Kelbie said
"I've left you on your knees before."
Robertson confirmed that he told the police that when Rush came out of
the bathroom he was standing at the top of the stairs looking downstairs,
probably because of the disturbance or commotion, and that this was true. He saw Tams at the top of the stairs. He heard Rush shouting "Get that bat down,
you little cunt". Thereafter he heard
constant banging. He confirmed that
Kelbie and JM came up the stairs behind Tams.
[28] The medical evidence and the forensic evidence confirmed that
there had been a number of blows to cause the injuries to Rush. The blood patterns and location of the blood
ruled out the explanation that he had fallen against the coffee table after
having been punched. The jury could
conclude that there had been blows to Rush when he was lying on the ground
bleeding. There was a small particle of
blood on JM's shoe which partially matched Rush's DNA. It must have been deposited there after being
airborne and he must have been within a metre of the blood source when the blow
was delivered. At the end of the
incident, according to Robertson, Kelbie shouted "Get that cleaned up."
[29] It seemed to the trial judge that the jury were entitled to
conclude that after the first incident Kelbie, Tams and JM left the house and
returned shortly thereafter. When they
returned Cairns and Ross
were rendered unconscious. Thereafter
Kelbie, Tams and JM went upstairs to the bedroom where Rush was assaulted. The blood spot on JM's shoe placed him in
close proximity to the assault.
According to Wood all three barged into the room. Robertson maintained that the assault
occurred outside the bedroom, but that was clearly wrong. Nevertheless Robertson confirmed that all
three of Kelbie, Tams and JM came up the stairs led by Tams. The jury could infer from the comment made by
Rush that one of the three had a bat.
Moreover, Ross's impression was that Cairns had been
struck by something like a baseball bat, and the injuries on Rush were
consistent with his having been struck by a piece of wood. In all the circumstances the jury could
conclude that this was a concerted attack upon Rush involving the use of a
wooden implement. Kelbie was identified
by Wood as one of the three men who barged into the room prior to Rush sustaining
injury. At the end of the incident he made the comment about
leaving Rush on his knees before, from which the jury could infer an
admission of his involvement in the assault upon him. Robertson spoke of the three men coming
upstairs and Rush shouting to one of them to put the bat down. Robertson also said that at the end of the
incident Kelbie shouted "Get that cleaned up", from which the jury might infer
that he was the leader and giving instructions to clean up the evidence of
bloodstaining.
[30] It seemed to
the trial judge that, although the evidence was thin, there was a sufficiency
to enable the jury to convict both Kelbie and Tams on the basis of their being
involved in a concerted attack upon Rush. The jury were entitled to conclude that they
and JM left the house after the first incident and returned shortly thereafter,
when at least one of them was armed with a baseball bat or similar
instrument. The contemplated use of a
baseball bat or similar instrument might result in the victim being struck
repeatedly about the head. If that
occurred the jury might conclude that there was the necessary wicked
recklessness for murder and that this was in the contemplation of those
involved in the concerted attack.
Submissions for the
appellants
Submissions for Kelbie
[31] On behalf of
Kelbie Mr Shead, after taking us through the transcript of the evidence of Wood
and Robertson, accepted that the evidence was sufficient to establish that
Kelbie had punched Rush in the first incident.
He submitted, however, that there was a fundamental discrepancy between
Wood and Robertson about the place where the second, more serious incident
occurred. Under reference to McDonald v Scott 1993 SCCR78, in particular at page 80, he submitted that
there was a fundamental divergence between the accounts given by Wood and
Robertson and accordingly that the evidence lacked the necessary conjunction of
testimony to satisfy the essential test of sufficiency. The evidence of these witnesses could not
realistically be reconciled. Counsel
recognised that the jury was free to pick and choose in the evidence of each
witness, but submitted that there must be a rational limit to that exercise.
[32] Counsel went
on to submit that, even if there was a technical submission, the verdict was
one which no reasonable jury could have returned. The evidence lacked the quality and character
necessary to justify a conviction.
Reference was made to the objective test set out in section 106 (3)(b)
of the Criminal Procedure (Scotland) Act 1995 (as amended), and the
discussion thereof in E v HM Advocate 2002 SCCR 341 at paragraphs
[27]-[35]. In terms of the statute a
miscarriage of justice may be based on "the jury's having returned a verdict
which no reasonable jury, properly directed, could have returned." In the present case the task of the jury in
deciding what was and what was not evidence was so great that this court was in
fact better placed than the jury was to perform this task. When it was performed, it could be seen that
the statutory test had been made out by the lack of conjunction of testimony
and the distinct possibility that the jury might have placed reliance on
passages from the evidence of both Wood and Robertson which did not truly
constitute evidence.
Submissions for Tams
[33] On behalf of
Tams, Mr Gilchrist adopted Mr Shead's submissions, but developed them
in certain respects, under reference to passages in the evidence already
summarised above. We see no need to
provide a separate summary of Mr Gilchrist's submissions on this part of
the case.
[34] Mr Gilchrist
also addressed us on what he described as his "fall-back position", that is to
say, if there was sufficient evidence to implicate Tams in a concerted attack
on Rush, there was nevertheless insufficient evidence to support a conviction
for attempted murder. He recognised that
participation in a concerted attack involving the use of weapons could involve
the mens rea sufficient for attempted
murder, but that depended on the circumstances of the particular case. Counsel did not seek to challenge the
decision in McKinnon v HM Advocate 2003 SCCR 224, but submitted
that such cases were fact-specific. In
the present case, whatever happened downstairs before the second incident was
so different from what then happened upstairs that it could not be said
attempted murder could be part of the common purpose of the participants. The second incident was of a different order
of magnitude from what had gone before.
Submissions for the Crown
[35] The Advocate depute accepted that the
evidence of Wood and Robertson was pivotal to the Crown case. The jury had to consider which parts of their
evidence they accepted and which they rejected.
It was open to the jury to conclude that there were three episodes
in a single course of conduct: (1) the first incident in the bedroom involving
Rush, when Kelbie, Tams and JM were present; (2) an episode in the livingroom,
involving Ross and Cairns; and (3) a second incident in the bedroom, in which
the assault on Rush constituted attempted murder. It was presented by the Crown as a case of
concert, the proper approach to which was to be found in McKinnon v HM Advocate. The nature and scope of a common criminal
purpose should be discerned on an objective basis. An accused might be convicted of art and part
involvement in an attempted murder if he actively associated himself with a
common criminal purpose which carried the obvious risk that human life might be
taken. Reference was also made to Black v HM Advocate 2006 SCCR 103.
The participants in a common criminal purpose might directly associate
themselves in various ways: Hume, Commentaries
on the Law of Scotland Respecting Crimes, i, 264.
[36] The Advocate
depute proceeded on the basis that the Crown case was that Kelbie was the actor
in the first incident and in the use of a wooden implement in the second
incident. Tams was involved in the first
incident, saying "Gie him it" and also, according to Wood's evidence, punching
Rush. Kelbie, Tams and JM left
together. After an interval, they
returned together with a weapon. The
jury were entitled to conclude that a weapon was used, firstly from the
circumstances of the episode downstairs involving Ross and Cairns, and secondly from the nature of the
injuries to Rush. All three must have
known that such an implement was used in the episode downstairs, and that one
of their number was prepared to use it.
There was evidence that all three then went upstairs. Rush was heard to say "Get that bat down, you
little cunt", and this formed part of the res
gestae. The jury could conclude from
this that one of the participants still had a wooden implement and that this
could be seen by the others. There was
no doubt that Rush received a savage beating with a blunt instrument. There was evidence that Kelbie said to Rush
"I've left you on your knees before", and that Kelbie shouted to Robertson and
Wood "Get that cleaned up", which could be taken as referring to Rush's
blood. Kelbie, Tams and JM then left
together, as in Halliday v HM Advocate 1998 SCCR 509, which served
to cast light on the attitude of the participants at the time of the attack and
attempting to show that they had been wickedly indifferent to its
consequences.
[37] On the
evidence as a whole there was plainly sufficient for the jury to be entitled to
conclude that the appellants were participants in a common criminal purpose
which objectively viewed carried the obvious risk of serious harm to Rush. It could not be said that no reasonable jury
properly charged could have reached that conclusion. E v
HM Advocate was a very special case:
see Holland v HM Advocate 2003 SCCR 616, at paragraph
53. In the present case the Crown
evidence did not display the "extraordinary weaknesses" of that in E v HM
Advocate. While there were
contradictions in the evidence, it remained open to the jury to pick and choose
and to decide what evidence to accept and what evidence to reject: see King v HM Advocate 1999 SCCR 330.
Discussion
[38] Although the
Crown case was that Kelbie was the actor in the use of a wooden implement to
assault Rush in the second incident, we do not regard it as essential for
present purposes to consider whether or not that was case. The appeals were conducted on the basis that
a wooden implement was indeed used on Rush, and there were indeed passages in
the evidence from which it might be concluded that, if Kelbie was involved, it
was he who wielded the implement. But
this was a case of alleged concert, in which, if the evidence was sufficient to
establish that there was a common criminal purpose, and its nature and scope
extended to attempted murder, each of the participants could be found guilty on
an art and part basis, without it necessarily being established what part each
of them played as actor.
[39] We are
assisted in this view by considering, in the first place, the passage in Hume
relied on by the Advocate depute:
"One thing is plainly reasonable, and
is allowed by all authorities: That if a number conspire and lie in wait, to
kill a certain person, ... it signifies nothing who gives the mortal blow, or
how few blows are given. Though but one
of the parties strike, and dispatch with one blow of a lethal weapon, he is not
therefore the one actor on the occasion, but executioner, for all of them, of
their common resolution: Properly speaking, he is their instrument with which
they strike, and they by their presence are consenting, aiding, and abetting to
him in all he does; having all come hither on purpose to have it done, and
being ready to lend their aid, if need shall be. Their presence on the occasion is
substantially an assistance. It adds to
the terror and the danger of the person attacked, who, in the case of an
assault by one only, not supported by the attendance of others, might happen
successfully to defend himself; as on the other side the invader is heartened
in the enterprise, by his knowledge of the force which is at hand to sustain
him."
[40] We also bear
in mind that, as was decided in McKinnon v
HM Advocate, an accused is guilty of
murder art and part where, first, by his conduct - for example, his words or
actions - he actively associates himself with a common criminal purpose which
is or includes that taking of human life or carries the obvious risk that human
life will be taken and, secondly, in the carrying out of that purpose murder is
committed by someone else. It is for the
Crown to prove in relation to each individual accused, inter alia, that there was a purpose of that character and scope
and that the particular accused associated himself with that purpose. Where he is not proved to have associated
himself with that purpose or is proved to have participated in some less
serious common criminal purpose in the course of which the victim dies, the
accused may be guilty art and part of culpable homicide, whether or not any
other person is proved guilty of murder.
The same considerations apply, mutatis
mutandis, to a charge of attempted murder.
[41] It was also
held in McKinnon that it is for the
jury to decide whether a person who participates in the carrying out of a
criminal purpose which leads to a further participant committing murder should
be held criminally responsible for the murder on the basis that he knew that a
weapon which could be readily used to kill was being carried for use in
furtherance of that purpose, so that there was an obvious risk of murder, and
that in such a situation it would be immaterial whether he knowingly ran the
risk or was recklessly blind to it; that if the relevant concert is
established, there is no separate question as to whether the individual accused
had the necessary intent which is required for guilt of a crime which is within
the scope of a common criminal purpose, and he is responsible for that crime in
the same way as if he had personally committed it; and that the nature and
scope of a common criminal purpose should be discerned on an objective basis,
and that in the case of individual accused the question was what was
foreseeable as liable to happen, and hence what was or was not obvious in this
respect. Again, the same considerations
apply, mutatis mutandis, to a charge
of attempted murder.
[42] In our opinion
there was sufficient to be found in the evidence of Wood and Robertson, as set
out above, to enable the jury to conclude that both Kelbie and Tams were
involved in the first incident, when Rush was the victim of a relatively minor
assault; that they and JM then left the house and returned sometime later; that
one of the party was then in possession of a wooden implement; that this was
used on Ross and Cairns in a way which demonstrated a willingness to use it as
a weapon; and that all three then went upstairs, when one of them, fortified by
the presence of the others, used the implement to commit a grave assault on
Rush. Although neither Wood nor
Robertson went so far as to give evidence that a weapon had been used, the
nature of the injuries to Rush was capable of yielding the inference that a
blunt instrument had been used. The
bloodstains in the bedroom were capable of yielding the inference that that was
where the injuries were inflicted on him.
The bloodstain on JM's shoe served to demonstrate that he at least was
nearby when that happened. It was open
to the jury to conclude that there was sufficient conjunction of testimony
between Wood and Robertson on the basis that each of them described a somewhat
different phase of the second incident, which on any account was not
instantaneous but took some time; or simply on the basis that that part of
Robertson's evidence which could be said to relate to the place of the assault
clearly fell to be rejected. In our
view, therefore, the trial judge correctly concluded that there was sufficient
evidence to entitle the jury to convict both Kelbie and Tams of assaulting Rush
in the second incident, in pursuance of a common criminal purpose to give him a
beating. We cannot fault his reasoning
in this respect, which is summarised above.
Further, we do not consider that it can be said that this was a
conclusion which no reasonable jury could have reached. It follows, therefore, that we are not
persuaded that the ground of appeal based on section 106 (3)(b) of the
1995 Act is made out.
[43] It remains for
consideration whether there was sufficient evidence to convict both appellants
not only of assault, but of attempted murder.
In our opinion there was. As we
have said, on the evidence they were both involved in the first incident, they
left the house together, when they returned one of them had a wooden implement,
and after the incident downstairs involving Ross and Cairns all three went
upstairs in a manner from which it could be inferred that their common
intention was to use the implement to give Rush a serious beating. To use such an implement for a beating of the
kind which Rush received carries the obvious risk that life may be taken and
may readily be characterised as attempted murder on the part of whoever wields
it. If it is foreseeable by the other
participants that it is liable to be wielded in that way as part of a common
criminal purpose, then it is open to a jury convict them also of attempted
murder.
[44] In our
opinion, assuming for present purposes that the evidence served to demonstrate
that Kelbie was the assailant who wielded the wooden implement, we are
satisfied that there was sufficient evidence to entitle a jury to convict him
of attempted murder; and there was no suggestion to the contrary in the course
of his appeal. We are also satisfied
that there was sufficient to entitle the jury to convict Tams of attempted
murder on the basis outlined above.
Result
[45] For these
reasons we reject the grounds of appeal for both appellants, and both appeals
against conviction are refused. Both
appellants have also lodged appeals against the sentences imposed by the trial
judge. These will be heard at a later
date.
