Lord Justice Clerk

Appellants: Jackson, Q.C., Miss Mitchell, Advocate; McClure Collins (for First Named Appellant)

Shead, Miss Livingstone, Advocate; McClure Collins (for Second Named Appellant)

Respondent: Miss Grahame, A.D.; Crown Agent

21 February 2006

The background

[1] The appellants faced an indictment containing the following charges:

"(1) On 16 November 2002, at the premises formerly known as Express Pizza, Townhead Street and a courtyard adjacent to 37-41 Townhead Street, both Hamilton, you did assault Alexander Carruthers, late of 53 Dalziel Street, Motherwell, punch him on the head, push him off a roof, repeatedly strike him on the head and body with a bottle, a fluorescent tube, a paint tin, a paint roller and a traffic cone or similar implements, repeatedly punch and kick him on the head and body and you did murder him; and

(2) on 18 November 2002 at a courtyard adjacent to 37-41 Townhead Street, Hamilton, you having committed the offence libelled in charge (1) hereof and being conscious of your guilt in respect thereof, did pour petrol over the body of Alexander Carruthers, late of 53 Dalziel Street, Motherwell and set fire to same, whereby said fire took effect upon the clothing and body of said Alexander Carruthers and this you did with intent to destroy evidence in respect of said offence, avoid detention, arrest and prosecution in respect of said offence, all with intent to defeat the ends of justice, and you did attempt to defeat the ends of justice".

On 10 February 2004, both of the appellants were found guilty by a majority of the jury on charge (1) and unanimously guilty in respect of charge (2). The first named appellant, in respect of the conviction on charge (1), was sentenced to detention for life with a punishment part of 17 years; in respect of charge (2), he was sentenced to 6 years detention, both sentences being ordered to run from 9 February 2004. The second named appellant, in respect of the conviction on charge (1), was ordered to be imprisoned for life with a punishment part of 17 years; in respect of charge (2) he was sentenced to 6 years imprisonment, both sentences being ordered to run from 9 February 2004.

[2] The first named appellant lodged a Note of Appeal containing three grounds; grounds 1 and 2 were grounds of appeal against conviction; ground 3 was a ground of appeal against sentence. The second named appellant also lodged a Note of Appeal containing three grounds. Grounds 1 and 2 were directed against conviction and ground 3 against sentence. The hearing before us was confined to consideration of the grounds of appeal against conviction.

[3] The circumstances of the offences, as described in the trial judge's report, were as follows. The evidence disclosed that the appellants had been drinking in various licensed premises on Friday, 15 November 2002. Later in the evening they purchased chips and were walking past the railway station in Hamilton when the now deceased shouted to them. They had not known the deceased, but had seen him previously. He was aged 51 and an homeless alcoholic. The appellants went over to speak to the deceased, who was sitting with a Margaret Wallace, with whom he had been in a relationship. She also was an homeless alcoholic. The appellants gave the deceased and Margaret Wallace some chips. Thereafter more chips were purchased for them. In the course of conversation, the appellants ascertained that the deceased and Margaret Wallace had nowhere to sleep that night and intended to remain outdoors. One or other of the appellants then told the deceased and Margaret Wallace that he knew of an attic flat where they could shelter. It was agreed that the appellants would show the deceased and Margaret Wallace where the flat was situated. All four of them walked from the railway station to the Cross at Hamilton, when Margaret Wallace indicated that she did not wish to go further. She was apprehensive that it was the intention of the appellants to rape her or otherwise sexually abuse her. She expressed that fear to them. Despite the efforts of the appellants to reassure her, Margaret Wallace refused to walk beyond the Cross and sat on a public bench there. Thereafter the appellants and the deceased walked away from the Cross. They then came to the entrance to the car park at the rear of the Town Hotel. All three men entered the car park. Thereafter they climbed a fire escape ladder on to the roof of the building and from there climbed up another fire escape ladder to the second storey of the building. From that level they crossed over and climbed the roof of a building from which they gained access to a loft. It appears that all three men entered the loft, but discovered that they were in the wrong attic flat. They climbed out again. Shortly thereafter, the deceased fell from the roof into a courtyard below. There was a dispute in the evidence as to the circumstances in which the deceased had fallen from the roof. According to a statement given to the police by the second named appellant, the first named appellant had pushed the deceased off the roof for no reason. According to the evidence of the first named appellant, the deceased had been arguing with the second named appellant. When the first named appellant intervened, the deceased had gripped him by the arms. He had reacted by pushing or punching the deceased, causing him to move backwards and to trip over the ledge of the roof.

[4] According to the statement given by the second named appellant to the police, and the evidence of the first named appellant, the appellants had both made their way from the roof to the street, in an attempt to gain access to the courtyard into which the deceased had fallen. As they descended from the roof, they could not see where the deceased was and kept shouting to him. At one stage, when they were at the first floor level above the courtyard, the first named appellant stated that the deceased had responded to their shouts. According to him, they had asked the deceased to kick open a door so that the appellants could gain access to the courtyard from the main street. The deceased had replied that he was unable to do so because his leg or legs were broken. Eventually the appellants reached the courtyard. According to the statement given by the second named appellant to the police, the first named appellant "just went mental". He stated that the first named appellant had hit the deceased repeatedly over the head with a bottle and thereafter picked up various items with which to hit the deceased, including a tin of paint and a fluorescent tube. According to the second named appellant, the first named appellant stabbed the deceased in the face with the fluorescent tube and thereafter gave it to the second named appellant. He told him to do the same. The second named appellant admitted hitting the deceased twice in the face with it. In his later police interview, the second named appellant stated that he had stabbed the deceased in the face with the tube. He also stated that he had struck the deceased with a paint roller and that the first named appellant just kept hitting the deceased. In his evidence, the first named appellant admitted that he had "lost the plot". He confirmed that he had repeatedly struck the deceased on the head with a bottle, a paint tin and a traffic cone, but denied that he had used a fluorescent tube.

[5] Turning to the circumstances of charge (2), the appellants had gone to a local petrol filling station at 17.43pm on 18 November 2002, when they had purchased four litres of petrol. Thereafter they returned to the courtyard in question and poured petrol over the body of the deceased. They set fire to it. In evidence, the first named appellant admitted that the intention had been to destroy the evidence in relation to their attack upon the deceased.

[6] Post-mortem examination disclosed areas of charring of the body, including charring to muscle and bone of both legs and heat fractures to both legs. It was not possible, as a result of the damage caused by the fire, to establish whether the deceased had had any fractures of his legs prior to his body being set alight. There were 33 injuries to the head and neck, one injury to the trunk, 6 injuries to the right arm and 5 injuries to the left arm. Of the total of 45 injuries, one pathologist expressed the opinion that at least 30 of them were attributable to an assault, whereas the other pathologist considered that all of the injuries were attributable to an assault, as they were not typical of injuries caused as a result of a fall from a height. The cause of death was certified as head injuries. The post-mortem examination also disclosed that the deceased had survived for at least 2 or 3 hours after the attack upon him, before he succumbed. The pathologists emphasised that from histological examination of the brain it was possible to state only that he had survived for at least 2 to 3 hours; he might well have survived for a much longer period prior to the onset of death.

Submissions for the first named appellant

[7] Senior counsel for the first named appellant explained that he did not intend to argue ground of appeal 2. He relied only upon ground of appeal 1, which was in the following terms:

"1. That the learned trial judge erred in law in his directions to the jury in respect of statements made by the appellant. The learned trial judge failed to direct the jury in relation to what use they were entitled to make of these statements other than indicating the (sic) could be used 'against the accused who made the statement ....' (page 44, line 5) and that they could not be used as evidence against his co-accused unless the co-accused had been present at the time of the making of the statement. (page 41, line 3). The learned trial judge failed to give direction that the jury were entitled to consider the appellants' statement as evidence in his own support".

[8] Senior counsel explained that the first named appellant had made certain statements, of which evidence had been led by the Crown in the course of the trial. These were undoubtedly mixed statements. In these circumstances, he submitted that the trial judge ought to have given appropriate directions relating to the evidential use to which a mixed statement might be put. In particular, he ought to have directed the jury that what had been said in such statements might be treated by them as evidence of the facts which they contained. Unfortunately the trial judge had not given such a direction. In that connection, senior counsel examined what had been said regarding statements by the trial judge between pages 40 and 44 of the transcript of his charge. The trial judge's error could be seen on page 44, at lines 4 to 10. He had said that the contents of the statements might be used by the jury as "evidence against the accused who made the statement either in your determination of whether he was part of a common criminal purpose or in your determination as to what he actually did on the night in question". The trial judge had endeavoured to justify the approach which he had taken by saying at pages 8 and 9 of his report:

"The transcript of the appellant's interview with the police is Crown production 24. Apart from minimising the number of blows involved and the omission of the reference to the fluorescent tube, it is difficult to see how the appellant's police statement could be construed as evidence in his own support in a case where the issue was whether he was guilty of murder or culpable homicide. The appellant's position at interview was that the co-accused did not kick, punch or throw anything at the deceased. Indeed he maintained that the co-accused was not there at the time of the assault and did not want anything to do with it. (See page 46 of the transcript). The appellant confirmed in evidence that that had been his position and he gave reasons for that. It respectfully seems to me that it is difficult to interpret the appellant's statement as being evidence in his own support unless that phrase is meant to suggest that the jury should have been directed that they could accept the appellant's statement to the police in so far as it limited the nature and extent of the appellant's attack upon the deceased after he had fallen from the roof. If that is what is meant by this ground of appeal, my direction at page 44 included a direction that the statement could be used against the accused who made the statement in their 'determination as to what he actually did on the night in question'. In the present case the statement was not exculpatory but by advising the jury that they could use it to determine what the appellant actually did to the deceased, it was clear that they could accept that the number and nature of the blows were as stated by him in his statement. If they accepted his statement to that effect the jury would then apply that factual finding in their determination of whether the actions of the appellant disclosed the necessary intention to kill or wicked recklessness required for murder. At page 31, line 24 onwards, I explained to the jury that they had to draw inferences or conclusions from what an accused person did as to whether they were satisfied beyond reasonable doubt that there was the necessary intention to kill or the necessary wicked recklessness".

[9] Senior counsel submitted that the fact remained that the trial judge had failed to give a direction as to the statement appropriate in the circumstances. It would have been quite easy to have given the appropriate direction. In all these circumstances, ground of appeal 1 possessed merit.

Submissions for the second named appellant

[10] Counsel for the second named appellant pointed out that three grounds of appeal had been stated on his behalf. Ground 1 was in similar terms to ground of appeal 1 for the first named appellant. For that reason, counsel adopted the submissions of senior counsel for the first named appellant in relation to his ground of appeal 1. In elaborating his position in relation to that ground, he submitted that there had undoubtedly been a misdirection by the trial judge in this regard. The important question was whether there had also been a miscarriage of justice. The second named appellant had been convicted, as libelled, but in relation to what had occurred on the roof, there was a doubt as to whether a conviction in those terms was justified. It had to be appreciated that the second named appellant had not given evidence; accordingly his position as explained in statements was crucial. At pages 19 to 21 of the transcript of the charge to the jury, the trial judge had explained the positions of the two accused in relation to evidence. It was pointed out that the second named appellant had not given evidence in the trial; however, that simply highlighted the problem of the misdirection in relation to the statement which he had given, which the trial judge stated could be used against him. In support of this submission, counsel relied upon Sneddon v HM Advocate (unreported); 29 November 2005. In that case a mixed statement had been put in evidence, yet the sheriff had given no direction relating to the use to which that statement could be put by the jury. The Court had held that a misdirection had occurred. However, after considering a number of other features of the case, it had concluded that there was no miscarriage of justice. The transcript of the mixed statement had been permitted to be taken by the jury into their jury room; it was relied upon in the speech of defence counsel. In all these circumstances the Court concluded that it was unrealistic to suppose that the jury might have failed to realise that they could take into account in the appellant's favour the exculpatory parts of his statement.

[11] Looking at the circumstances of this case and, in particular, what was said at page 26 of the charge to the jury, spontaneous concert was a feature of the Crown case. That was important in relation to the issue of a miscarriage of justice. The second named appellant had been convicted of all that occurred on the roof from which the deceased fell to the ground because of the first named appellant's actions. The first named appellant had given evidence concerning a blow to the deceased in consequence of which he had fallen. He had distanced the second named appellant from that in his evidence. Accordingly there was an issue as to whether the second named appellant had been involved at all in what had occurred on the roof on an art and part basis. That issue had to be resolved by reference to what the second named appellant had said in his statement. It was plain from the terms of the convictions that the jury must have concluded that the second named appellant was responsible for what had occurred on the roof on an art and part basis at the time when the deceased was pushed. The second named appellant's statement bore on that because in it he had said that the push was a spontaneous action on the part of the first named appellant. The second named appellant could have been convicted of culpable homicide and the first named appellant of murder in all the circumstances, yet there was no direction given by the trial judge regarding the possibility of different convictions, as recognised in Melvin v HM Advocate 1984 S.C.C.R.113. In that connection reference was made to pages 46-47 of the charge. That case had not been disturbed in Mackinnon v HM Advocate 2003 S.C.C.R.224. While it was accepted that there was no ground of appeal relating to this particular point, counsel argued that it was comprised in ground of appeal 1; the mixed statement was of importance to all of these issues. The case had called for a very much more refined approach on the part of the trial judge than he had displayed.

[12] Counsel then turned to support ground of appeal 2 for the second named appellant, which was in the following terms:

"The learned trial judge at page 49, lines 14-18 of his charge properly directed the jury that '...if the verdict is to be guilty of anything at least 8 of you must be in favour of that verdict before you can return a guilty verdict'. However, in seeking to clarify and explain the position thereafter at lines 18-25, page 49 and lines 1-4, page 50 he erred in law by failing to direct the jury specifically that in order to return a verdict of guilty of murder at least 8 must be in favour of that verdict. He specifically explained that there must be an acquittal even where the largest number voted in favour of guilty but that numbered less that (sic) 8. In contrast he failed to make clear to the jury that even where at least 8 of their number voted for a guilty verdict, but less than 8 were in favour of a verdict of guilt in respect of murder, the appropriate verdict would be one of culpable homicide or assault as appropriate. At page 50, lines 2-4 he states without qualification 'you must have 8 in favour of a guilty verdict before you can return such a verdict'. These directions created ambiguity and confusion as to how the jury should arrive at a verdict where at least 8 had voted for a guilty verdict but where there were not 8 in favour of a verdict of guilty of murder. This was of particular importance in this case since in addressing the jury senior counsel for the appellant did not seek an acquittal but suggested that the verdict should reflect the appellant's responsibility for the assault on the deceased as something less than murder."

[13] In connection with this ground of appeal, counsel drew our attention to what had been said at page 49 of the charge. He also relied upon Docherty v H M Advocate 1997 S.C.C.R. 345 at page 349. In view of the inadequate directions in this regard that had been given by the trial judge, there had been a miscarriage of justice on account of the sensitivity of the circumstances of this particular case as regards the possibility of different verdicts. In view of the fact that complete acquittal had not been open to the jury on the evidence, the options for them were convictions of murder, culpable homicide, or assault. In these circumstances it was of particular importance that they should understand the need for a majority in relation to a particular verdict of guilt.

Submissions for the Crown

[14] In relation to the first of the grounds of appeal of the appellants, the Crown position was that sufficient directions had been given if the charge was read as a whole; in any event, even if that submission were wrong, there was no miscarriage of justice in the circumstances of the case. The background was that the issue in this case in relation to both of the appellants was not one of guilt or acquittal, in practical terms. It was whether, in relation to the first named appellant, the conviction should be one of murder or culpable homicide. In relation to the second named appellant the issue was whether the conviction should be one of murder, or culpable homicide, or merely assault, for which he had contended. The second named appellant had made certain admissions relating to the striking of the head of the deceased twice with a broken fluorescent tube. Further, there had been evidence from the pathologist concerning the cause of death, which was head injuries. The second named appellant had struck the deceased in that way after he knew of the attack on him by the first named appellant. The trial judge had focussed very early in the charge on the fact that the issue was one relating to the quality of the attack upon the deceased. In that connection the Advocate depute referred to the issue of what crime had been committed at page 19 of the charge. At pages 22 to 23 he had instructed the jury that it was open to them to reach a different view in relation to each accused as regards what crime had been committed. That part of the charge followed what had been recognised in Melvin v HM Advocate. At pages 24 to 25 of the charge, the trial judge had explained to the jury the concept of concert and the importance of asking what was the scope the common criminal purpose. At page 26 he had dealt with the matter of spontaneous concert, which was what had been contended for by the Crown. At pages 29 to 30 of the charge the trial judge had instructed the jury as to the importance of the quality of the criminal intent involved. In relation to that matter, between pages 31 and 33, he had made it clear that criminal intent required to be inferred from the whole circumstances of the case and the whole evidence relating to the accused's actions. That reference to the whole evidence relating to the accused's actions plainly included the contents of the statements put in evidence and the evidence of the first named appellant himself.

[15] From page 38 of the charge onwards, the trial judge had dealt with the matter of the statements made by the appellants. The passage at page 44, on which attention had been focussed, had to be seen in the context of the charge as a whole. In that particular passage, the trial judge had referred to the use of statements as "evidence against the accused who made these statements", but the context indicated that the trial judge contemplated that the statements would be made use of in the determination of whether a particular accused was part of a common criminal purpose, or in the determination of what a particular had actually done. That was tantamount to saying to the jury that they could use the material in the statements as evidence of the matters with which it purported to deal.

[16] The Advocate depute went on to deal with ground of appeal 2 of the second named appellant. At page 49 of the charge, the trial judge had explained the three verdicts available in any criminal trial, which was always appropriate, even if, as here, acquittal was only a theoretical possibility. Thereafter he had said that a majority of at least eight had to be in favour of any guilty verdict. That was a proper direction and had to be considered in the context of the options of convictions of murder and culpable homicide. In relation to the second named appellant the trial judge had been content to say nothing relating to assault, since that appellant had in fact admitted assaulting the deceased using the broken fluorescent tube.

[17] Looking at the whole circumstances of the case the Advocate depute submitted that there had been no miscarriage of justice here; there was compelling evidence available to the jury to find both appellants guilty of the charge of murder, leaving aside the events which had occurred on the roof. There was evidence available from the statements by both appellants, to which the jury could have regard, sufficient to demonstrate wicked recklessness. There was evidence from the pathologists describing the significant injuries inflicted to the deceased's head, inflicted at a time when, according to the evidence available from the appellants themselves in their statements and in the evidence of the first named appellant, the deceased had been immobile after his fall from the roof. He has spoken but could not move. In effect he was trapped and at the mercy of the appellants. There had been 45 injuries identified, of which 30 were inflicted or in consequence of an assault. More than one weapon had been used, these had been directed at the head of the deceased where the fatal injuries had been inflicted. In the knowledge of what had been done, the appellants had left the deceased in the courtyard on the occasion in question, which had been a cold night in November. It had to be borne in mind that the deceased had been a 51 year old alcoholic. In all the circumstances there was ample material to demonstrate murderous intent on the part of the appellants.

The decision

[18] We deal firstly with the issue raised in grounds of appeal 1 for both appellants. Between pages 38 and 44 of the charge, the trial judge dealt at some length with the significance of statements made by accused persons and, in particular, the appellants. The criticisms made of the trial judge's directions were focussed upon what was said at pages 43 and 44 of the charge. His words were these:

"... what you do have, ladies and gentlemen, is you have the evidence of what each accused said and although it is not evidence against the other accused because he wasn't present, it may be used by you as evidence against the accused who made the statement either in your determination of whether he was part of a common criminal purpose or in your determination as to what he actually did on the night in question."

[19] It is not disputed that the statements by the appellants which were before the jury were mixed statements, in the sense in which that expression has been used following Morrison v HM Advocate 1990 S.C.C.R. 235 and McCutcheon v HM Advocate 2002 S.L.T. 27, and that the evidence of these statements was led by the Crown. In these circumstances, we consider that the trial judge was under an obligation to direct the jury correctly about the evidential value of those statements and to make it clear to them that their contents were available as evidence of the facts to which they related, in favour of or against the accused. In the passage in the charge which we have quoted, that was not done. Accordingly, we conclude that, in that respect the passage concerned amounted to a misdirection by the trial judge.

[20] Standing the conclusion which he have just reached, the question which then arises is whether the misdirection concerned, in the circumstances of the case, amounts to a miscarriage of justice. In that connection it appears to us important to consider the context in which the trial judge used the language which we have quoted at pages 43 and 44 of the charge. The background was that, so far as the first named appellant was concerned, there was no practical possibility of his acquittal. As senior counsel on his behalf frankly acknowledged, so far as he was concerned, the live issue before the jury was whether the conviction would be one of murder or culpable homicide. So far as the second named appellant was concerned, we understood that at the trial his counsel had contended for a conviction of assault only. However, we also understood that whether the conviction might be one of assault, as opposed to one of murder or culpable homicide, was an issue dependant upon the causation of death, or, in any event, circumstances unrelated to the contents of the statements made by him and led in evidence. Once again, in his case, there was no practical possibility of acquittal. Against that background, the use by the trial judge of the language which he chose at page 44 of the charge, in our opinion, would not suggest to the jury that they were disabled from considering the contents of the statements as evidence of the facts with which they dealt. While he said that the statements might be used "as evidence against the accused", in the context of a situation in which acquittal was not a practical possibility, those words do not appear to us to suggest that the jury was disabled in the way we have mentioned. Furthermore, the trial judge went on to say that the content of a statement could be used in relation to the maker of it "either in your determination of whether he was part of the common criminal purpose or in your determination as to what he actually did on the night in question." It appears to us to be the inescapable implication from those words that the trial judge was instructing the jury that they could use the contents of the statements in their determination of the crucial issues in the case which involved the application of the doctrine of concert in the circumstances and in the determination of the issue as to what each appellant actually did on the night in question. We are reinforced in this conclusion by a consideration of what was said by the trial judge in other passages in the charge. At pages 4 and 5, among his general directions, the trial judge explained the need for the jury to reach their verdict in the light of the evidence in the case. He explained that the evidence embraced matters which had been agreed, or all testimony and evidence comprising the documentary productions. Again, at pages 22 to 23 where the trial judge dealt with the need to consider the position of each accused separately, he used language which indicated that the jury were entitled to consider the case against each accused in the light of the whole available evidence. At page 30 of the charge, in the context of how the issue of criminal intent should be approached, the trial judge made it clear to the jury that they could reach a conclusion in relation to that on the basis of what the accused had done or said. At page 33, the trial judge, in the same context of criminal intent, referred to the jury's entitlement to consider the whole circumstances and to take into account the whole evidence relating to the accused's actions.

[21] In the light of all of these features of the charge, the conclusion which we have reached is that, despite the language used at page 44, in the passage that was criticised, the jury would have been in no doubt that they were entitled to take into account the contents of the statements as evidence of the facts to which they related in their determination of the crucial issues in the case. Thus we conclude that a miscarriage of justice has not occurred in consequence of the misdirection which we have identified.

[22] We turn next to consider the matter raised in ground of appeal 2 for the second named appellant. This ground of appeal was focused upon the directions given by the trial judge at pages 49 and 50 of the charge in relation to the reaching of a verdict. At page 49 he said:

"Your verdict can be given unanimously or by a majority but if the verdict is to be guilty of anything then at least eight of you must be in favour of that verdict before you can return a guilty verdict. ... You must have eight in favour of guilty before you can return such a verdict."

In our opinion, the words used by the trial judge in relation to the reaching of a verdict of guilty properly reflected the requirement for the reaching of such a verdict. He directed the jury that if there was to be a verdict of guilty of any particular crime then at least 8 jurors required to be in favour of that verdict. That is the interpretation which we give to the words used on page 49 of the charge. Accordingly we conclude that the trial judge's directions in relation to that aspect of the case were in accordance with law and did not amount to a misdirection of the jury.

[23] For all of these reasons we shall refuse both appeals against conviction.