APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Brodie Lady Dorrian	[2012] HCJAC 130 Appeal No: XC685/11 & XC707/11   OPINION OF THE COURT   delivered by LADY DORRIAN   in   APPEAL AGAINST CONVICTION   by   DANIEL KIMET THOMAS CARR and GRANT MACNEILL   Appellants;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

First Appellant: Shead; Paterson Bell

Second Appellant: C Mitchell; Capital Defence Lawyers

Respondent: Shand, QC; Crown Agent

17 October 2012

[1] On 22 September 2011 at the High Court in Glasgow, the two accused were found guilty of a charge of attempted murder. The charge alleged that on 23 May 2010 at 21 Kelhead Path, Glasgow, they did assault Sean Gowdy, push or drag him out of the door of the flat at 5/1, 21 Kelhead Path, Glasgow, pursue him and cause him to fall to the ground, seize hold of him, repeatedly punch, kick and stamp on his head and body, repeatedly cause his head to strike against a wall and repeatedly strike him on the body with a knife or similar implement, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and they did attempt to murder him. Carr was also charged with a bail aggravation. The evidence of the complainer was that the assault started within the flat and continued in the common stair with the two accused involved in an assault by pushing, punching and kicking. The stabbing occurred on the third floor landing when, according to the complainer, he was being kicked on the face and head by Carr. He turned his back to protect his face, turning his face to the wall. At this point he was aware of both accused behind him, MacNeill being nearer to his feet. While the kicking continued, he heard Carr say "Grant, stab him" or "stab him, stab him". He was receiving kicks to the back of his head, when he felt a shooting pain in the right flank. He was stabbed five times in the right flank with a knife or similar instrument. The other primary source of evidence against the accused was Laura Gunn, a former girlfriend of the complainer. She effectively gave two differing accounts. In examination in chief and in cross examination for the appellant, Carr, she gave evidence of seeing the initial fight in the flat, seeing both accused leave the flat in pursuit of the complainer, and seeing them both return together. Both accused were "buzzing" and boasting that they had "just do'd the cunt" (sic). One of them, in the presence of the other, said "if you don't believe us lick my shoe and you'll taste the blood". The appellant, Carr said, also in the presence of the co-accused that "wee Grant" was his "wing man" and had backed him up. Laura Gunn also said that both accused had previously been in her kitchen, from which a knife was missing. She added that the following day the accused, MacNeill claimed to have stabbed the complainer. This, however, for reasons that are not entirely clear, was a piece of evidence which the Crown chose not to found upon. In cross-examination for the accused, MacNeill, Laura Gunn claimed that her police statement was lies and that she had been frightened at the time of making the statement. On this account the assault took place in two stages. There was the initial struggle in the flat, after which she saw both accused leave in pursuit of the complainer and return together. However , at that point Carr went into the kitchen with MacNeill and took a knife from the drawer. He returned to the stairwell carrying it accompanied by MacNeill. The knife was visible. She tried to persuade Carr not to take it. MacNeill may or may not have done the same. Carr returned shortly after and washed the knife with bleach. MacNeill did not say the next day that he was the stabber. Remarks attributed to the accused, referred to above, were made, but they were made in between the two episodes.

[2] At the trial, each accused admitted to having been involved in an assault on the complainer but denied being responsible for the stabbing. This was consistent with statements made by each of them in respect of which evidence was led at the trial. There was evidence from a witness, McGill, that the accused Carr admitted "battering" the complainer but said that MacNeill had pulled a knife and stabbed him. The accused MacNeill had given a non Cadder-compliant interview at the conclusion of which he was cautioned and charged giving the reply "I never done it. I kicked and punched him but never stabbed him". The Crown led the evidence of the reply to caution and charge but objected to efforts on behalf of MacNeill to lead the rest of the interview. The trial judge concluded that the reply to caution and charge could be consistent either with participation in a concerted attack involving stabbing by someone else or with kicking and punching by the co-offender as a distinct event and that it was arguable that the reply could not be understood properly if divorced from the interview that preceded it. He therefore allowed the evidence to be led. In the interview MacNeill claimed that the incident had taken place in two stages and he admitted kicking and punching the complainer during the first stage, "booting into him" when he was on the ground. In between the two stages, Carr took a knife from the draining board in the kitchen in the flat. Apparently he "gave the impression" that he protested and Carr threatened to stab him. He distanced himself from the stabbing by saying that Carr pushed the complainer downstairs and stabbed him whilst he, MacNeill, was looking on from higher up. The position adopted by the Crown was that there had only been one incident in the course of which both accused were involved in pushing, punching and kicking the complainer but that MacNeill, at the instigation of Carr and whilst Carr was continuing to kick the complainer, had stabbed him. On this basis they argued that the accused MacNeill was guilty of the stabbing as actor and the accused Carr on the basis of concert.

[3] The trial judge's charge is structured in a somewhat unusual way. It starts with directions about how to return a verdict and how to make deletions. The jury are then directed that unless they accepted the evidence of the complainer and Laura Gunn in certain material particulars, to be explained further, then they could not convict anyone of the stabbing or anything that follows from it. There was, however, evidence available to them which, if they accepted it, would entitle them to convict both accused of the stabbing and all that followed. They are then directed on the respective functions of judge and jury before being given definitions of assault, attempted murder and the various aggravations set out in the charge. In summary the trial judge stated:

"For the Crown to prove this charge, you would need to be satisfied that the accused, or one or other, or both of them, attacked the victim, in doing so, that the attacker, or attackers, acted with a wicked intention to cause death, or in a way which showed wicked recklessness as to the victim's fate ..."

 

[4] Having given these directions, the trial judge turned to the issue of concert. In that respect he advised the jury that although as a rule, people are only responsible for their own personal acts:

"If there are several individuals knowingly involved together in a concerted criminal purpose, even though the individuals are playing different parts, everyone of them is responsible for (what) each one personally does, and everyone of them is responsible for the consequences, provided that the attack doesn't go beyond the scope of what was jointly intended. And in Scots law, joint criminal responsibility of that kind for a concerted criminal purpose is known as concert."

 

The example of a robbery is given by way of illustration and the jury are then told:

"Now, it's quite possible for an assault which is concerted to some extent to go further than planned. If, for example, one of the attackers produced a hidden weapon and started using it unexpectedly and killed the victim, and if the common purpose was simply for an assault without weapons, then the one with the weapon would be guilty of the killing and the rest only of the assault. That's just an example."

 

The jury are advised that a joint attack can be preconcerted or can arise spontaneously and are then advised in relation to this case that:

"If both of the accused were aware that a knife was being carried for the purpose of assault, and still embarked on the assault, or carried on with the assault, then both would be guilty of the stabbing even though only one of them used the knife."

 

He then went on to say that although there was evidence that the accused Carr

"...took the knife from the flat and brought it back, there does not, in my view, appear to be admissible evidence that he actually wielded it, and the victim, Sean Gowdy's, evidence, if accepted by you would rule out Daniel Carr as the stabber. So, realistically, the only option for you to consider is whether the second accused wielded the knife and whether the first accused was involved in the assault in which the victim was stabbed and knew that the knife was going to be used."

 

We were informed that the complainer did not in terms "rule out" Daniel Carr as the stabber, rather this was an inference which the trial judge drew from the evidence narrated above. The trial judge went on to direct the jury that:

"....unless you find that there was only one assault, it is not open to you to find that the second accused was guilty of stabbing. I would go further and direct you that unless you find that there was only one assault, it's not open to you to find either accused guilty of stabbing, but if you do find that there was one assault then it is open to you to find that both accused were guilty of stabbing as part of a concerted attack. If you find there was one assault, as described by Sean Gowdy you have a classic case of concert, namely one accused assaulting by kicking and telling or asking the other accused to assault by stabbing and the other accused then assaulting by stabbing and the first accused continuing to kick."

 

[5] Having given these specific directions the trial judge then gave general directions on presumptions of innocence, the burden of proof, the standard of proof and corroboration. He then gave directions about the assessment of evidence and the importance of assessing reliability and credibility. At that point in the charge the court adjourned for a comfort break. What then happened was that submissions were made on behalf of the second accused to the effect that the judge's previous direction that the only realistic option was to consider whether the second accused wielded the knife and whether the first was involved in the assault in the knowledge that that knife was going to be used, were incorrect and that it would be open to the jury to find that Daniel Carr alone was responsible for the stabbing and all that followed. The trial judge appears to have accepted those submissions as correct and, in due course, gave directions about this. We will come to these shortly. It is perhaps unfortunate that the trial judge did not deal with this matter immediately on resumption of his charge. In fact the next thirteen pages were taken up with directions about hearsay, statements made by one accused outwith the presence of another, the use of statements made by accused persons, and prior inconsistent statements. He also refers briefly to the evidence of Sean Gowdy, concluding, this part of his charge by telling the jury (p45) that if they:

"accept that the evidence founded on by the advocate depute is reliable and credible, then that would amount to a concerted attack in relation to which both accused would bear responsibility for the stabbing, provided I direct you, that there is some other evidence to support it."

 

Only after this does he turn to revise the directions he gave earlier, prior to the comfort break: the result was that 26 pages elapsed between the prior directions and the revised directions. The revised directions were introduced with the observations that "....contrary to what I suggested earlier, there are circumstances in which it might be open to you to find that Daniel Carr, alone, was responsible for the stabbing and all that follows." The trial judge then went into an analysis of the evidence to indicate the basis on which this might be open to the jury. This result he said could be arrived at (a) by accepting Laura Gunn's second account; (b) by a limited acceptance of the evidence of Sean Gowdy, namely to the extent that he was being assaulted by the first accused at the time he was stabbed; but (c) by rejecting Gowdy's evidence "to the effect that Carr could not have been the stabber". Finally, at page 60, the trial judge seeks to summarise the important points of his charge. He does so in the following words:

"Just to recap on the salient points. If the evidence from any source leaves you with the reasonable doubt, you must acquit, notwithstanding that defence counsel have put a proposal as to what matters should be deleted from the assault, not including, from the assault, that means up to the bit about stabbing. It is up to you to satisfy yourself on the evidence whether any specific thing was done in pursuit of this, the assault, beyond kicking or punching or whatever. If you think it was a concerted assault, then what was done by one is the responsibility of both. If you do not find stabbing proved, everything following on from that, I direct you, has to be deleted. If you do find stabbing proved, it is open to you to find everything following on from that proved, if you think that is the effect of the evidence. It opens the door to you doing that, it does not compel you to do that. But, to find attempted murder proved, you would have to be satisfied on the evidence of what was said and done, I direct you, from more than one source, and you would have to be satisfied on the evidence from more than one source beyond reasonable doubt that there was the necessary wicked intention."

 

[6] In relation to the first accused, five grounds of appeal were stated. Three of these were related, directly or indirectly, to the directions on concert namely 1, 4 and 5. These were to the effect that it was incumbent on the trial judge to direct the jury to consider the case against each accused separately; that the directions as a whole conveyed the impression that the verdict in respect of one accused governed the case against the other; that the directions at p45, referred to above, were erroneous, since it was a matter for the jury to determine whether there was evidence which satisfied them that the appellant had subscribed to a common purpose which was murderous; and that it was a misdirection to say that it was open to the jury to convict the first accused as actor. The remaining grounds of appeal related to the judge's directions in relation to the statement made to the police by the co-accused. For the second accused there was one ground of appeal containing several parts. It is suggested that since the issue of concert was critical, the fact that the original directions (page 19) failed to mention the possibility that the first accused could be found guilty as actor, and were only corrected later (page 48), would have been apt to confuse the jury. It is said this is particularly so where the charge was not structured in a way which would have assisted comprehension since the general directions were given after directions on deletions, definition of the crime and the law of concert; and the correction itself was only dealt with much later in the charge, when the judge addressed the views which the jury might take on the evidence.

[7] We have reached the conclusion that the directions on concert in this case were materially inadequate, constituting a misdirection and a miscarriage of justice. No clear directions were given on the need to find that the accused participated in a concerted attack with a murderous purpose. It is true that the trial judge stated that if both were aware of the knife and still embarked or carried on with the assault, both would be guilty of stabbing even though only one used the knife (page 17); and, by reference to an example where one attacker pulls and uses a hidden weapon, that if the common purpose was simply for an assault without weapons, then the one with the weapon would be guilty of the killing and the rest only of an assault (page 18). However, he does not, at that point or elsewhere, direct the jury that it is essential to identify whether there is a common criminal purpose and more importantly in the context of this case, to identify what was the extent and scope of the purpose to which any individual accused subscribed. The advocate depute sought to plug the gap by referring to the directions given about mens rea for attempted murder but in our view that is not enough. Of course one must look at the charge as a whole, but a general direction on the mens rea required for attempted murder is not enough to bring home to a jury the requirement for a common criminal purpose before any conviction on the basis of concert can follow; and the need to identify the scope of that purpose for each accused. The matter is compounded in our view by the fact that at no point in the 72 page charge does the trial judge explain to the jury that the case against each accused requires to be considered separately. There was no direction at any stage to this effect, yet it is fundamental that before it can be determined whether or not two or more accused acted in concert, the evidence relating to each of them must be considered separately.

[8] The appropriate approach in charging the jury in a case such as this is set out very clearly in the case of Cussick v Her Majesty's Advocate 2001 SCCR 683 at paragraph 8 where Lord MacLean, delivering the Opinion of the Court stated:

"What a jury must first consider in a case of alleged concert is what evidence they accept which implicates each accused separately so that they may determine whether there is sufficient evidence against each accused. The next matter which a jury should consider and therefore must be the subject of a suitable direction, is what they should do if they are satisfied that there is sufficient evidence against each accused. They should then go on to consider the law of concert and its application to the evidence they accept. Frequently, the law is illustrated by the circumstances of a bank robbery. Whether that illustration is given or not, the jury must be clearly directed on the question whether or not the accused or any combination of them were acting together in furtherance of a common criminal purpose. Lastly, the jury should be directed what they should do if they do not find it established that the accused were acting in furtherance of a common or criminal purpose, and that is that they should convict the accused only in respect of what they are satisfied beyond reasonable doubt each did."

 

In a case where it is open to the jury to conclude that one or other accused was party to a common purpose to assault, but not necessarily with a murderous intent, then it is critical that the jury are given directions that they must identify, separately for each accused, whether there was a criminal purpose to which he was a party and if so, to what extent. The issue in the present case was not simply whether there was a concerted assault, but whether the scope of that concerted assault included the use of a weapon in an attempt to murder. Repeatedly in his charge the trial judge refers to the possibility of the jury concluding that there was "a concerted attack", (for example page 45/16-25, page 60/15-17) but what is not made clear at any stage is that the jury must focus on the position of each individual accused throughout the incident and the question of whether he was part of a murderous purpose. The question of whether the Crown had established a concerted attack was not the only question: there was a further question relating to the nature and extent of any concert. That in turn required examination of issues of whether the accused knew of the knife, whether they anticipated it might have been used and for what purpose.

[9] In this case, apart from the issue of concert, the jury were also having to grapple with issues relating to prior inconsistent statements of witnesses and the issue of the statements made by one accused outwith the presence of the other. In this latter regard, the trial judge, having given fairly standard directions (pp34-37) that a statement made by one accused outwith the presence of the other might be evidence against the speaker but not the other accused, the trial judge returned to the matter when discussing whether the jury might reach the conclusion that Daniel Carr alone was responsible. At p48 he said this:

"... the other piece of evidence that would go into making that conclusion, if you accept it, is the evidence from the second accused is that he was not involved in the stabbing. Now, you are entitled to treat that evidence as evidence in his involvement or non-involvement. It doesn't go against the first accused but it is evidence that comes into play in that respect here."

 

The accused Carr had made a similar, if much less detailed, statement namely that he had been involved in "battering" the complainer but that it was the second accused who had pulled the knife and stabbed Sean Gowdy somewhere in the block of flats. The directions given to the jury in relation to that, inconsistently with the directions given in relation to the statement made by MacNeill were that they could treat this as potential evidence against Carr himself but that it was not admissible against MacNeill and that they " have to disregard it". It was not suggested that this evidence, led by the Crown, could be evidence of Carr's "non-involvement". It seems that in his statement MacNeill had demonstrated Carr holding the knife in his left hand, saying "the knife was in that hand and he swung with that". In that respect, the trial judge said (p59):

"Now, if it be the case that Daniel Carr was holding the knife in his left hand, and it's a matter for you, does that square with Daniel Carr kicking the back of Sean Gowdy's head while Sean Gowdy is lying on the landing with his back turned and, at that same time, sticking the knife five times into Sean Gowdy's right flank? If it doesn't square, then you have to decide if the discrepancies can be explained and, if not, whether either version is acceptable."

 

At page 61 the trial judge returns to the issue of Grant MacNeill's statement, (which throughout he refers to as Grant MacNeill's "evidence"), remarking that:

"if you accept that he, from his interview statement that he was not involved in the stabbing, you would then consider the effect of the evidence of Laura Gunn, as I pointed out before, that the first accused picking up the knife, going out with the knife and bringing back the knife and, you would have to reconsider the evidence of Sean Gowdy and see if there is, to your satisfaction, the basis for rejecting parts of it and finding Daniel Carr alone responsible for the stabbing, and that is something open to you, ladies and gentlemen."

 

We did not hear detailed submission on this matter, having been persuaded of the inadequacy of the directions on concert; but it is apparent even on their face that the directions in relation to the use of statements made by one accused outwith the presence of the co-accused are capable of confusing, on the one hand saying that MacNeill's statement was not evidence against Carr, but at other points (pp48, 61) seeming to imply that it might be. The matter is of some relevance to the primary grounds of appeal, because in our view where there are conflicting statements made by the accused outwith the presence of the co-accused, and in particular where those statements are exculpatory of the speaker and incriminatory of the other accused, it is all the more important that the jury are given clear and specific directions to consider the case of each accused separately. The existence of the complication of a statement such as this highlights the absolute requirement for the jury to be given very clear directions on the importance of looking at the case against each accused separately and assessing the evidence against each accused separately. Since we have reached the view that the misdirections on concert resulted in a miscarriage of justice, we do not need to reach a conclusion on the separate ground of appeal relating to prior inconsistent statements, but as will no doubt be clear from what we have just said, we have at the very least serious misgivings about the way the trial judge addressed that issue in his charge.

[10] It follows that as we have reached the conclusion that the misdirections on concert resulted in a miscarriage of justice, the appeal against conviction will be allowed and the convictions require to be quashed.