Act: Murray, Q.C., Nicholson; Balfour & Manson, SSC, Edinburgh

Alt: S.F. Murphy, Q.C., A.D.; Crown Agent

6 December 2006

[1] On 12 January 2006 the appellant was convicted, after trial, in the High Court of Justiciary sitting at Glasgow of the culpable homicide of Paul Johnstone. He was charged, along with a co-accused, Andrew Ian Brown, but during the course of the trial the co-accused absconded. The charge of which the appellant was found guilty libelled that on 1 January 2005 at 79 Canmore Road, Glenrothes, Fife the appellant and the co-accused:

"did assault Paul Johnstone, residing there, and seize him, force him into the living room there, repeatedly punch and kick him on the head and body, repeatedly stamp on his head and body, force him to write a note of apology, cause him to fall from a third floor window there to the ground and he was so severely injured that he died ... ".

[2] It is not in dispute that the appellant and the co-accused, Brown, did assault Paul Johnstone in the manner described in the charge. The issue in this appeal may be broadly stated as whether there was sufficient evidence to allow a jury to conclude that Mr. Johnstone's death was caused by the appellant's participation, jointly with Brown, in the assault upon Mr. Johnstone. The motion made by counsel for the appellant at the hearing of the appeal was accordingly that the verdict of culpable homicide should be quashed and a verdict of assault substituted in its place.

[3] As is explained in the report by the trial judge, the background to the assault by the appellant and Brown on Mr. Johnstone revealed in the evidence was that on 31 December 2004 Mr. Johnstone had assaulted Melanie Wright with whom he had been in a somewhat turbulent relationship. In the early hours of 1 January 2005 Ms. Wright was drinking with, among others, the appellant and the co-accused, Brown. On learning of the assault on Ms. Wright the co-accused declared that he would "batter" Johnstone for his having done so. The appellant, a friend of Brown, chose to accompany Brown to Mr. Johnstone's flat on the mission to give the "battering" to Mr. Johnstone. According to what the appellant said later to the police, he did so to make sure "that Andy was alright"; he joined in the fight; both he and Brown punched and kicked Mr. Johnstone in his living room and in the kitchen; and they left him in a bad way on the floor of his living room with black eyes and cuts to his head after they had got him to write a letter of apology to Ms. Wright.

[4] When Brown and the appellant left Mr. Johnstone's flat after their conjoined assault on him, the flat door was locked and the key removed. According to what the appellant said to the police, Brown locked the door and took the key. The appellant told the police that he had not actually seen Brown lock the door and take the key but Brown told him of that fact "when we went up the road" which, in context, is on leaving Mr. Johnstone's flat and proceeding to the appellant's flat at 58 Alexander Rise, Glenrothes. The appellant and the co-accused stole various items from Mr. Johnstone's flat following the assault upon him and these were taken with them to the appellant's flat. The key to the flat door of Mr. Johnstone's flat was subsequently found by the police in the appellant's flat but since both delinquents went to the appellant's flat after the assault on Mr. Johnstone, the significance of that finding is neutral as respects the time of acquisition by the appellant of knowledge that the door to Mr. Johnstone's flat had been locked.

[5] There was evidence from some of those present in the appellant's flat on the return of the appellant and Brown, that the footwear of both was bloodstained. Both admitted that they had taken part in an assault on Paul Johnstone. At a later stage in the morning of 1 January 2005 the appellant and Brown went to the house of one Shaun Earlie, still with bloodstained footwear. The appellant's brother, Mark McDonald, was present and when he enquired as to what had happened the appellant said that they had given Paul Johnstone a beating. The report of the trial judge continues:

"When asked if it was a bad beating, Mr. Brown said yes, he thought it was attempted murder and the appellant said yes, it might be murder. The appellant told Mark McDonald that they had locked him in his house."

[6] The photographs and video recording of the interior of the flat of Mr. Johnstone which were taken by a scenes of crime officer are reported by the trial judge as revealing

"signs of considerable disturbance in the living room and kitchen of Mr. Johnstone's flat. There were bloodstains on the furniture, carpet, TV, radiator, ashtray and wastepaper bucket and also on the ceiling in the living room. In the kitchen there were signs of a significant disturbance with bloodstains on the doorframe, on the walls and the floor, on the fridge and on certain moveable items, including a bottle, a glass and also a cup from which it appeared that Mr. Johnstone had drunk after the fight."

[7] However, as is apparent from the terms of the indictment Mr. Johnstone did not die in his flat by reason only of the injuries sustained in the assault upon him. His death occurred after he had fallen to the ground from the kitchen window of his flat.

[8] The deceased's third floor flat was at the gable end of a block of flats and the kitchen window was in the gable wall. The lower edge of the deceased's kitchen window was some 32 feet above ground level but was 5 foot 1 inch above the top lintel of the kitchen window of the flat below (the second floor flat). That top lintel protruded horizontally to some extent. The evidence relating to the deceased having left by his kitchen window is narrated by the trial judge in his Report in these terms:

"It was clear that Mr Johnstone had chosen to climb out of his kitchen window. There were no signs of significant disturbance of glass objects on the ledge in front of the window which one would have expected if he had been resisting an attempt to eject him. A fingerprint in blood on the interior face of the bottom frame of the window belonged to him and was consistent with his climbing out of the window or holding on to the frame while standing on the top lintel of the second floor window which was five feet and one inch below. The Crown fingerprint expert, Peter Marjoram, agreed that the fingerprint was consistent with a person being outside the window. Allan Boyle, a fingerprint expert called by the defence, opined that the print was consistent with a light grip on the frame and suggested that it may have been placed there as he was climbing out of the window. The top lintel of the second floor window, which was made of a thin slab of concrete, had broken and broken pieces of it were found close to where Mr Johnstone was found lying. The pieces of the lintel looked as if they had been broken recently as the surfaces which had not been exposed to the elements when in situ looked clean. PC Robert Christie, who attended the scene on the morning of 1 January 2005, said that it was obvious that the broken pieces of the lintel on the ground had fallen there recently. Dr Sadler, who conducted the post mortem examination, explained that he and Professor Pounder had found abrasions on the left side of Mr Johnstone's chest and on his left forearm that were consistent with his losing his manual grip on the window frame, rotating and abrading his body against the wall as he fell. There was a large downpipe located close to the kitchen window and it was possible that Mr Johnstone was seeking to move along the lintel to reach it when he fell. From this evidence it was open to the jury to conclude that after the assault Mr Johnstone had decided to exit his flat by climbing out of the window with the intention of descending by the downpipe but that the second floor lintel broke under his weight causing him to fall thirty-two feet to the ground."

Counsel for the appellant took no issue with this narration or the conclusion which the trial judge regards as being open to the jury.

[9] There was evidence from a CCTV system installed in a shopping centre some 150 yards from Mr. Johnstone's flat which showed the appellant and his co-accused arriving there at 0518 hours on 1 January 2005 carrying bags, presumably containing the items removed from Mr. Johnstone's flat. There was also evidence from a number of nearby residents of their having heard a scream immediately followed by a loud thud. Unsurprisingly, their respective estimates or recollections as to the time at which they heard that combination and sequence of sounds varied to some extent. Details of these variations are given by the trial judge in his Report but the conclusion which he draws - and which was not in dispute - is that the appellant and the co-accused left Mr. Johnstone's flat at some time between 5 minutes and 30 minutes before Mr. Johnstone fell from his kitchen window.

[10] Mr. Johnstone was not discovered until some 5 hours or so after his fall, when his body was observed by a passer-by who called the police and an ambulance. Mr. Johnstone died later in the afternoon of 1 January 2005 in hospital. The pathologists who carried out the autopsy were agreed that the deceased would have survived the injuries sustained in the assault but were of differing views as to whether Mr. Johnstone would have survived both the injuries sustained in the assault and the injuries sustained in the fall had he not developed hypothermia as a result of lying in the open for some hours on that January morning. The difference of opinion is, however, not material to the issues in this appeal. The post-mortem investigations established that the deceased had consumed a considerable quantity of amphetamine. He was, however, a drug addict. One of the pathologists (Professor Pounder) expressed the view that as a result of the head injury sustained in the assault, Mr. Johnstone might have suffered initial confusion.

[11] In his charge to the jury the trial judge gave very full and careful directions on what was required to establish a causal link between the unlawful act and the death of the victim before a verdict of culpable homicide might be returned. Since no criticism is made by counsel for the appellant of the trial judge's directions on causation, it is unnecessary to set out these directions at length. Put shortly, the trial judge instructed the jury that they required, first, to be satisfied that "but for" the assault on him the victim would not have died. However, the "but for" test was only the initial test and the jury then had to consider whether the unlawful act was a direct or indirect cause. As he put it, some acts may pass the "but for" test but be considered too remote in time or other circumstances to be direct causes and would thus fail to satisfy the causal link. If there were a direct causal link, it would not matter that the assailant might not reasonably have foreseen that death would result or how it would occur; but if the victim of the assault reacted in a wholly unforeseeable or unreasonable way that would mean that the attack would cease to be a direct cause of the death and thus the requisite causal link would not be established.

[12] In opening his presentation of the appeal, counsel for the appellant indicated that whatever debate there might be respecting whether the appropriate causation test included foreseeability, his submission did not hinge on that issue and he was happy to advance it on either view. Mirroring the no case to answer submission which had been advanced at trial, his leading submission was that there was insufficient evidence to allow the jury to conclude that, in the appellant's case, the necessary causal link could be established.

[13] In advancing this submission counsel focused first on the question whether the Crown had proved prior complicity by the appellant in the locking of the victim of the assault in his flat after the assault upon him had been committed. The evidence relating to the appellant's knowledge of the locking of the door came principally from what was said by the appellant in the course of his second police interview in which the appellant stated that the co-accused had locked the door but denied seeing the co-accused do so. While the statement to the police went on to say that the co-accused had told him that he had locked the door "when we went up the road", that was after the actual moment of locking up the door. Similarly, the remark to the appellant's brother that "they" had locked Mr. Johnstone in his house was consistent with the appellant's having learned of the locking of the door as he and the co-accused proceeded "up the road". While the key was recovered in the appellant's house, that had no significance in this context since both the co-accused and the appellant had gone to the appellant's house after their assault on Mr. Johnstone. The trial judge therefore erred in telling the jury that it was open to them to treat the locking of the door as part of the common purpose. Moreover, the absence of any bloodstains on or near the entry door to Mr. Johnstone's flat meant that there was no positive evidence that Mr. Johnstone knew he had been locked in his flat and for that reason chose to leave by means of the window.

[14] Putting matters more generally, counsel submitted that, in the absence of evidence that Mr. Johnstone knew he had been locked in his flat, one simply had the evidence that Mr. Johnstone had chosen to climb out of his kitchen window. That was an instance of unreasonable conduct. Under reference to McKew v Holland & Hannon & Cubitts (Scotland) Limited 1970 S.C. (H.L.) 20 and Malcolm v Dickson 1951 S.C. 542 it was submitted that unreasonable conduct, which could not be foreseen, was not part of direct and natural causation.

[15] Counsel for the appellant then referred to Broadley v H.M. Advocate 2005 S.C.C.R. 620, the evidence and argument in which were, said counsel, largely equivalent to the present case. In the former case the Crown evoked some 15 adminicles of evidence but the court, on appeal, found that evidence to be insufficient to hold the appellant in that case responsible for the death of the alleged victim by reason of her falling from the window there in question.

[16] In response to the motion advanced by counsel for the appellant, and in inviting refusal of the appeal, the advocate depute began by distinguishing Broadley v H.M. Advocate. The facts in that case were materially different. There was a very significant time gap (over 24 hours) between the acts alleged to have been committed by the accused in that case and the deceased's action in climbing out of the window; and there was no evidence of the accused having even been in the room at or shortly before the fall from the window. By contrast, in the present case Mr. Johnstone had been seriously assaulted by the appellant and his co-accused within a very short period before he fell from the window.

[17] The advocate depute went on to submit that the central question was whether there was evidential material sufficient for the jury to reach the conclusion that the deceased left via his kitchen window in response to the attack upon him. Climbing out of such a kitchen window was not normal; but special circumstances may make such an exit rational to the person affected by those circumstances. The deceased had no access to a landline or a mobile telephone (with which state of facts counsel for the appellant indicated his agreement) but he could have summoned help in other ways, such as banging on the windows. Importantly, there was much evidential support for the view that Mr. Johnstone was attempting to make a careful escape via the kitchen window. The glass articles on the interior ledge were undisturbed; there was the evidence of his possibly trying to reach the downpipe and the breaking of the lintel of the window of the flat below; and there was the scream. There was nothing to support the possibility that Mr. Johnstone was committing suicide and the evidence of his means of exit, the breaking of the lintel and the scream were in broad terms inconsistent with a suicidal jump from the window. It was accordingly open to the jury readily to infer that Mr. Johnstone was trying to escape. And once one draws that inference, the further inference can be drawn that the attempt to escape was prompted by the attack. As to the precise thinking of the deceased it was possible to envisage a limited number of scenarios. One scenario might be that, being confused in the manner spoken to by Professor Pounder, and wishing help for his injuries, the deceased took the course which he did. Another might be that Mr. Johnstone feared that his attackers were still in the flat, or lurking outside the door. A third scenario was that he had indeed realised that he was locked in, albeit that there were no bloodstains in the hall and, given the extent of Mr. Johnstone's injuries, it was perhaps not unreasonable to expect that there would be some such stains were the deceased to have tried to open his front door. But all scenarios, and no other realistic scenario had been suggested, went back to the fact that the deceased had been assaulted very shortly before his fall from the window. The trial judge was therefore correct to say to the jury that it was not essential for the Crown to prove that the deceased knew the door to his flat to have been locked.

[18] We consider that there is force in the submissions advanced on behalf of the Crown and, accordingly, we have come to the conclusion that there was sufficient evidence in the case to allow the issue whether the death of Mr. Johnstone was caused by the attack on him to be determined by the jury. It is important at the outset to bear in mind the short interval of time between the conclusion of the attack and the deceased's fall from the kitchen window. As already mentioned, that interval was not more than 30 minutes and could well have been as few as 5 minutes. In that, and other respects, the facts of this case differ significantly from those which obtained in the case of Broadley v H.M. Advocate. Next, we consider that the real evidence relating to Mr. Johnstone's leaving by the window does indeed allow the inference to be drawn that in doing so he was executing an escape. That real evidence includes the fact that the articles on the window ledge were not disturbed; the location of the fingerprint of the deceased found on the window frame, as interpreted by the fingerprint experts; the fracturing of the lintel of the inferior kitchen window; the abrasions to the left side of Mr. Johnston's chest and his left forearm which the pathologists described as being consistent with his losing his grip on the window frame; and finally, the scream which was heard by the eye-witnesses. Although suicide was canvassed as a possibility in some of the questions put by counsel for the appellant at the trial, it was not suggested to us in this appeal that there was any material which could support the view that Mr. Johnstone left his window in order to commit suicide. Given the inference from that body of evidence that Mr. Johnstone was trying to escape via his window and the short interval of time between the attack and that attempt it is not difficult legitimately to infer a relationship between the former and the latter. The advocate depute suggested a number of scenarios, all of which led back to the assault. No other unconnected scenario was seriously suggested. It was not, in our view, necessary for the Crown to prove the precise mental processes (or confusion therein) which led Mr. Johnstone to react to the assault or hamesucken in the way in which he did.

[19] As the advocate depute explained, it was not essential to the Crown case that they satisfy the jury that the deceased knew that he had been locked in his flat. The trial judge pointed out to the jury there was also the evidence that no blood from the deceased was found in his hall or on the interior surface of the flat entry door, which might support the inference that the deceased did not go to his front door after the assault and, accordingly, that might give rise to a question whether the deceased knew the door to have been locked.

[20] Since the locking of the door was not a crucial part of the Crown case the trial judge's direction that it was open to the jury to conclude that the act by Andrew Brown of locking the door was something which might be included in the common criminal purpose loses some significance. However, we are not persuaded that it was in the circumstances a misdirection. It is not every detail of what may occur in the execution of a common criminal purpose which has to be foreseen. Where two or more people embark upon a common criminal purpose they are normally responsible for what happens in the course of the execution of that purpose. It is the unexpected and unforeseen, going clearly outwith the parameters of the joint purpose, for which joint art and part responsibility is elided. There is nothing in the evidence to which we have been referred which would suggest that the locking of the door of Mr. Johnstone's flat was something which was unforeseen by the appellant. Nothing which he did or said afterwards indicates any surprise by the appellant that the co-accused had turned the key and removed it. Indeed, the appellant appears to have associated himself with those actions. We accordingly consider that the trial judge was not in error in indicating to the jury that the locking in of the deceased could be treated as an incidental part of the joint common purpose for which the appellant required to bear such responsibility as might flow therefrom, on an art and part basis.

[21] In these circumstances we consider that it has not been demonstrated to us that a miscarriage of justice has occurred and the appeal is accordingly refused.