|
APPEAL
COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Osborne
Lord MacLean
|
[2006] HCJAC 18
Appeal No:XC141/04
Appeal No: XC139/04
OPINION OF THE COURT
delivered by LORD OSBORNE
in
NOTE OF APPEALS AGAINST CONVICTION AND SENTENCE
by
STEVEN McGOWAN
First Named
Appellant;
and
STUART HARRIS
Second Named Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
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.
