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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Black+ & Anor v. Her Majesty's Advocate [2006] ScotHC HCJAC_11 (02 February 2006)
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Cite as: [2006] HCJAC 11, [2006] ScotHC HCJAC_11

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Abernethy

Lord Carloway

 

 

 

 

 

 

 

[2006] HCJAC 11

Appeal Nos: XC733/03

XC747/03

 

 

OPINION OF THE COURT

 

delivered by THE LORD JUSTICE GENERAL

 

in

 

NOTES OF APPEAL AGAINST CONVICTION

 

by

 

STEVEN BLACK and ALISTAIR SNEDDON

 

Appellants

 

against

 

HER MAJESTY'S ADVOCATE

 

Respondent

 

_______

 

 

 

First Appellant (Black): ME Scott QC, Latif; Drummond Miller WS for SJ Hamilton & Co., Airdrie

Second Appellant (Sneddon): JMW Thomson QC, Renucci; Balfour & Manson for McAfee, Coatbridge

Respondent: Stewart QC, AD; The Crown Agent

2 February 2006

 

[1] This is the Opinion of the Court to which each of its members has contributed substantially.

The Charges

[2] On 16 May 2003, after a trial at the High Court in Glasgow, the second appellant was convicted by a majority verdict of a charge which libelled that:

"(2) on [Wednesday] 1 January 2003 at Kenilburn Avenue, Holehills, Airdrie, you...did assault Steven Charles Walker...repeatedly punch and kick him on the head and body, knock him to the ground, repeatedly strike him on the head and body with a bottle, and throw bottles at him".

 

The first appellant's brother, Martin Black, was also convicted of that charge. Both appellants were unanimously convicted of charges which libelled, inter alia, that on the same date outside 28 Lilybank Avenue, Holehills, Airdrie, whilst acting along with others, they did:

"(5) ... conduct [themselves] in a disorderly manner, strike and break the windscreens of two cars ... and scratch and dent the bodywork of said vehicles, throw bottles at said house and thereby break a window and glass door panels there, place the occupants in a state of fear and alarm for their safety and commit a breach of the peace ...;

(6) ... assault Steven Charles Walker ... repeatedly punch him on the head and body, throw bottles at him and strike him repeatedly on the body with a knife or similar instrument, all to his severe injury and to the danger of his life ...;

(7) ... assault John Berry Paterson ... seize hold of him, strike him repeatedly on the head and body with a baseball bat and strike him repeatedly on the body with a knife or similar instrument, all to his severe injury, permanent impairment and to the danger of his life ...".

 

Martin Black was also convicted of these charges, as was one Brian McPherson.

 

The First Incident

[3] The second appellant does not appeal against his conviction on charge (2). However, the events with which that charge was concerned set the background to the subsequent attack on the house at 28 Lilybank Avenue. That house was occupied by Mary Paterson (aged 42), the ex-wife of John (known as Jake) Paterson (44), who is the complainer in charge (7). Mrs Paterson's brother is Steven Walker (33), the complainer in charges (2) and (6). Her sons include John Paterson junior (23) and Steven Paterson (16). All of these persons gave evidence at the trial, as did one Lee Pearson (22), a friend of John Paterson junior. They were all celebrating New Year in the house. In the early hours of the morning, Jake Paterson, Steven Walker, John Paterson junior and Lee Pearson all went out first footing. As they were returning to the house along a neighbouring street (Kenilburn Avenue) at about 4.25 a.m., they met a group of youths, including Martin Black and the second appellant. For reasons which are not fully explained, Martin Black attacked Steven Walker in the manner libelled in charge (2). The second appellant joined in that assault. Mr Black also assaulted Jake Paterson by hitting him hard on the head with a bottle. He was convicted of that assault and of a further assault in the course of the first incident. Steven Paterson had, at some point during the incident, arrived from the house with a pickaxe shaft. After the attack broke off, the Paterson group returned to the house. The pickaxe shaft was not brought back.

 

The Second Incident

[4] Albeit that not all of his narrative is accepted by the appellants, the trial judge summarises what then occurred as follows:

"About an hour after the first incident, the second incident began. In Mary Paterson's words, "All hell broke loose". Several full bottles of beer came crashing through the livingroom windows. The glass panels of the front door were smashed. It was later found that the windscreens of two cars parked just outside the house at the front had been smashed and their bodywork had been scratched and dented. The occupants of the house were seriously alarmed by all of this. Matters became worse when an attempt was made to force entry to the house through the front door, which was held shut by Mary ... Paterson. There was no telling what might come through the windows next, or what might happen if entry was forced and the attackers entered the house. While, with hindsight, it was an unwise move, Steven Walker and [Jake] Paterson decided to leave the house in order to see off the attackers. Neither of them was armed. By contrast, the attackers were armed and well organised. While there were more than four of them, those who were identified were Martin Black, [the first appellant] (who was not present at the first incident and whom Martin Black must have asked to join the group), Brian McPherson and [the second appellant], who was wearing a mask but was identified by his clothing. All of them were armed with cudgels of one kind or another. While, in the nature of things, the evidence was somewhat fragmentary, it appeared that all four accused were armed with wooden cudgels, i.e. the pickaxe shaft which Steven Paterson had [in the first incident]...and baseball bats (which may have been intended more for ornament than for sport, but were nevertheless substantial pieces of wood). In addition Martin Black had a knife, although this was not apparent at first. Steven Walker and [Jake] Paterson sallied forth between the two cars and then went in different directions. This gave the attackers the opportunity to form themselves into two sub-groups, each of which attacked one of the complainers. These assaults were the subject matter of charges 6 and 7. Martin Black took the opportunity during each of these assaults to stab each of the complainers repeatedly with the knife which he had. [Jake] Paterson was struck on the left side of his head with a cudgel, in the same place as he had been struck with the bottle during the first incident. Towards the end of the second incident Brian McPherson threw a bag of bottles at [Steven] Walker. The second incident concluded very quickly after Steven Walker and [Jake] Paterson had left the house, and they were helped back into it by some of the other occupants who had come to the door and had witnessed all or part of the assaults."

 

The trial judge observes that the verdicts of the jury meant that all four members of the attacking group had been acting in concert in respect of everything that was libelled in the second incident.

 

The first appellant

 

(a)               General

 

[5] The first appellant's contentions consisted of a restricted form of his grounds of appeal. First, there was insufficient evidence to entitle the jury to infer that the first appellant was a party to any common criminal purpose, other than an assault on Jake Paterson with a bat (or stick). Put another way, although there was enough evidence to convict the first appellant of part of charge (7), there was insufficient proof of his involvement in the breach of the peace (the general attack on the house in charge (5)) or in the use of a knife on either charge (6) or (7). Secondly, there was insufficient evidence that the scope of any common criminal purpose extended to the use of a knife. Thirdly, in relation to that scope, even if there had been sufficient evidence on these aspects, the directions to the jury had been inadequate especially in relation to the use of a knife.

 

(b) Sufficiency of evidence

 

(i) THE EVIDENCE

[6] Because of the nature of the first and second contentions, it is necessary to examine the evidence of the involvement of the various protagonists involved in charges (5) to (7) in some detail. As background to that, it should first be noted that number 28 is a terraced or semi-detached house. At the front on the ground floor is the main door and the livingroom window. In front of the door and window is a small area of ground, surfaced with tarmacadam and enclosed by a wooden fence and gate. Occupying almost all of that area were the two cars, parked facing out towards the street. Beyond the fence were the pavement and the roadway.

[7] The first relevant witness is again Mr Walker. After the bottles came through the livingroom window, he went outside and encountered two boys, both inside the fence, one between the cars and the other beyond them (Transcript pp 51-52). He "went out to grab somebody". He was aware of Jake Paterson coming out behind him (p 57). Mr Walker seized hold of someone (not one of the two boys), who was on the other side of the fence. He attempted to pull him over the fence and into the garden (p 54). They were scuffling over the fence. He had his head down and four or five other persons were punching into his back (pp 55-56). Mr Walker twisted his knee and fell down, eventually finding himself on the roadway, where he was kicked. He was helped up by Steven Paterson (p 57). He had not seen anyone with any form of weapon (pp 58, 72) and was unable to identify any of the attackers (pp 59, 72) apart from Mr McPherson, who had been the last to leave and had thrown a bottle as a parting shot (p 60). It was only once he had returned to the house that he realised that he had been stabbed (pp 61-62). Indeed, he had been stabbed several times to the back, one blow causing a pneumothorax.

[8] Jake Paterson could recall nothing about the second incident other than that he had gone out of the house to see who was in the attacking group (p 182). His next memory was of waking up in hospital. Mr Paterson was also stabbed several times in the back and also suffered a pneumothorax. However, his most severe injury was caused by a blow or blows to the head. The jury considered that it had been caused both by being struck by a bottle in the first incident and by a baseball bat in the second incident. The injury was life threatening and caused permanent brain damage, affecting his hearing, speech and memory. He has been forced to give up his work with Boots Manufacturing, with whom he had been for twenty-four years.

[9] Steven Paterson provides the principal source of evidence against the first appellant. Mr Paterson also left the house, behind his uncle Steven and his father Jake. He described the attacking group as standing at the gate, with two persons between the two cars (i.e. inside the fence) (pp 253-4, 310-11). One of the two was Mr McPherson and he had a baseball bat (p 260, 369). The other person was wearing a balaclava (p 258). His father and uncle ran out to chase the group away. The two inside the fence jumped back over it and rejoined the others (pp 259, 354). His uncle went to the left and his father to the right. Both were attacked. When asked who was at the fence, Mr Paterson replied (p 256):

"First of all I noticed Martin Black to the left. Then [the first appellant] to the right."

 

The impression from his testimony is that he was describing the first appellant and his brother standing outside the fence. Martin Black had the pickaxe shaft (pp 261, 312), which Mr Paterson had taken to the first incident. Mr Paterson continued (p 265):

" ... my uncle and my father were fighting like across the fence. I noticed my father got struck with something and falling over the fence. That was like when he was getting struck across the back like someone was aiming like another baseball bat and then at that time my attention was drew to my uncle Steven. He was kind of fighting with either two or three people at the fence, at the corner of the fence on the left ... "

 

He placed the first appellant in the vicinity of his father, to the right as he looked out the door. His uncle was to the left. They seem both to have been within the fence, at least initially. His father was fighting with more than two people who were on the other side of the fence (pp 268-72).

" ... I seen him getting struck with something across the head and at that his kind of upper body kind of falls over the fence and at that he has been struck with like another object across the back ... It was the same again, it was like something that resembled another baseball bat ... I looked at my uncle and he was being struck with another object on it must be like the upper body. I kind of noticed Martin [Black] still swinging the pickaxe about there.

... as [my father] was slumped like over the ... fence he was struck over the back again ... [by] somebody else. The one that struck him with the kind of bat was on my father's left. He kind of struck him over the head [with] it - across the left hand side of his head. Then as he slumped over the fence he has been struck with another object across the back from it would be like my father's right so it would be like two people standing there ... "

 

In evidence in chief, Mr Paterson said that the first of the people hitting his father was Mr McPherson (p 272). The second person was the first appellant (pp 273, 328). In cross-examination, the first appellant's counsel conceded that the first appellant had been at the scene (p 328). Immediately after that concession had been made, Mr Paterson was cross-examined to the following effect:

"And as far as you are concerned, you say you saw [the first appellant] hit your father over the shoulder, is that correct, with a baseball bat?"

 

Mr Paterson assented to that proposition and expanded upon it by saying that the first appellant had hit his father three, four or more times (p 328) but not over the head (pp 338, 372). He also described the incident as follows (p 358):

" ... my father was fighting between [the first appellant] and someone else and then whoever else he was fighting moved away and that is when Brian McPherson got involved and then that is when he struck him with the baseball bat across the left side of his head."

 

Mr Paterson was only able to identify Martin Black as one of the assailants of his uncle. The other person was moving back and forwards in the attack (p 275). Mr Paterson seems to have a blank in his memory from then until he helped his brother John to pick his uncle up from the middle of the road, which he had somehow reached. He also spoke to Mr McPherson aiming a kick at his uncle and later picking up a bag of bottles and throwing it at the house (pp 281-3).

[10] John Paterson junior provided potential corroboration of the involvement of the first appellant at the scene. He spoke to being in the house and there being no shouting or other noise in advance of the bottles being thrown (pp 422-424, p 551). There were about six people in the attacking group (p 552). He saw his father following his uncle out of the door. He went out also and saw his uncle (p 432):

"out in the middle of the road ... like fighting 'between Martin [Black] and Alistair [the second appellant]."

 

His uncle was trying to fend them off (p 450). There were two others there also (p 435). The second appellant had a round piece of pole of similar dimensions to the pickaxe shaft (p 451). He was swinging it (p 454). Martin Black had the pickaxe shaft which Steven Paterson had had previously (pp 452, 493). Meantime, Mr Paterson's father was being held over the fence (p 438). The persons involved with him were the first appellant and Mr McPherson (p 440). The first appellant was directly in front of his father and the other person was to his left (p 443). He did not see anything happening to his father, nor did he see the first appellant with any weapon (pp 444, 446, 508-9). He also did not see the first appellant doing anything to his father (pp 449, 511). The other person (Mr McPherson) had a dark graphite baseball bat (p 444), holding it as if about to strike the left side of his father's head (pp 448, 450), although this may already have happened (pp 511-12). There were only two people involved with his father (p 447). At the request of his ex-wife, Jake Paterson went to rescue Mr Walker from the road (p 453). Meantime Mr McPherson removed his top, in an apparent attempt to change his appearance, and threw a bag of bottles at those in front of the house (pp 458, 505).

[11] Mrs Paterson had been upstairs in her bedroom. She described the first thing that happened as an explosion (pp 578-9): "It was just like bang, big, big loud bangs". She went downstairs and was on the steps of her house when she saw her brother Steven in the middle of the road with people around him (p 586). She shouted for someone to go and rescue him and then saw someone going over to him and striking him on the back "a couple of times" (pp 586, 591). He had been on his knees at the time (p 590). He was hit in the area of the left shoulder (p 592). She described an arm coming down on her brother's back (p 593) but did not know whether there was any weapon involved. At the time (p 595):

"I seen another two guys just slightly to the other side of him. One was quite tall and he had a ... to me it looked like a piece of wood in his hand. Then there was somebody just slightly to the left of him who was slightly smaller."

 

She thought that the piece of wood was longer than a baseball bat (p 596). The two were about seven or eight feet away from her brother and there was another couple of persons nearby, "just as if they were all coming in" (p 597). She described her impression that the men were "going to circle and go into my brother" and that is why she called for his rescue (p 603). One of them was quite tall with dark clothing and a balaclava (p 603). She was unable to identify any of the assailants.

[12] Finally, there is Mr Pearson. He placed the time span between the two incidents at about half an hour (p 658). There had been "complete silence outside" before the attack (p 661). After the initial bottle attack, he went to the front door and saw Mr Walker and Jake Paterson go out (p 662). He did not want to become involved because he feared getting "hit with things or stabbed or that" (p 815). From the door, he was able to identify Martin Black and Mr McPherson on the pavement across the street (p 665). There were three people, apparently including Mr Black and Mr McPherson (p 667). "Two or three" of them had sticks or bats, or rather a light coloured baseball bat and the pickaxe shaft (p 668). Mr McPherson had the baseball bat and was swinging it about (pp 673-4). At this point, Mr Walker appeared to be in the middle of the road (p 677). Martin Black was two steps away from him (p 679). Mr Walker went down on the ground and (p 680):

"that is when people were coming in swinging stuff".

Mr Pearson was able to identify Martin Black and Mr McPherson in that capacity, swinging things at Mr Walker (p 683, cf p 691). As to what they were swinging, he said (p 683): "It was maybe a knife or something" being swung by Martin Black and a baseball bat by Mr McPherson (p 684). He said that a blow from Martin Black had struck Mr Walker on the left shoulder. He thought it was a knife because he had seen "something shiny" (pp 708, 716). He also said that a blow from Mr McPherson's bat had struck Jake Paterson on the left hand side of the head causing the bat to break (pp 685, 689). This incident had occurred to Mr Pearson's left whereas that to Mr Walker was to his right. Jake Paterson had then gone to rescue Mr Walker.

[13] One final piece of evidence was the first appellant's interview by the police on the afternoon of 4 January 2003 (Production 32). In it, the appellant accepted that he had been in the vicinity of Lilybank Avenue at the material time. He said:

" ... I walked along the top of ... I think it's Holehills Avenue it's the top street in Rawyards. [I] walked along, heard a lot of shouting and that and I walked to the top of Lilybank Avenue and I looked down and there was a lot of people fighting commotion going on ...

So I walked down Lilybank Avenue and there was I don't know, I couldnae tell you exactly, how many people but there was a lot of people fighting in the street."

 

He gave an account of his brother Martin being there and being attacked with a pickaxe shaft, presumably by one of those from the house. He ran down to the scene to effect his brother's rescue. He talked about bottles being thrown from the house but could not explain how it came to be that it was the windows of the house that had been broken. He left the scene in the company of his brother.

 

(ii)                SUBMISSIONS

[14] The first appellant submitted that, from all of the evidence, there was a picture of perhaps six people outside the house, some of whom were armed with (to use the trial judge's description) "cudgels". There was evidence that the first appellant had a baseball bat at one point and that the three other accused also had sticks, shafts or bats. Other than Mr Pearson, no one saw a knife. Although it was clear that the two complainers had been stabbed during the incident, there was no evidence about the timing of the stabbing of Jake Paterson. There was no evidence that the use of the knife would have been known to those joining in the attack, other than the person carrying it. There was no evidence that the first appellant had been at the scene at the start of the episode or any evidence of his having any involvement with Mr Walker. Contrary to what the trial judge had said, there was no evidence of: the attack on the house being "well organised"; the first appellant being asked to join the group by his brother; the appearance of the knife; any communication between the first appellant and the others; or any activity by the first appellant prior to the second incident.

[15] The first question was: what could be inferred from the evidence regarding the scope of the common criminal purpose? If the first appellant was party to the purpose, the second question was: to what extent? The evidence was that the first appellant was involved in an attack on one person, namely Jake Paterson, at one point. That single involvement was insufficient to hold that he was part of a group with a common criminal purpose to assault any of the house's occupants, notably Mr Walker. Furthermore, the evidence was insufficient to show that the scope of the purpose extended to the use of a knife. It was not possible to equiparate bats and cudgels with knives. A common criminal purpose involving the use of knives could not be inferred by working backwards from the fact that a knife was used. There had been no evidence that a knife had been visible or that more than one knife had been used.

[16] The Advocate Depute responded that all three charges (5),(6) and (7) arose out of one event. It was unrealistic to divide the events up, as the grounds of appeal suggested. The only reason for the charges being split into three was to avoid complexity in directing the jury. It did not preclude an inference that the same common purpose existed in relation to each charge. The first issue was whether there was sufficient evidence of a common criminal purpose. The second was whether there was sufficient evidence of the first appellant's presence at the time it was effected. The third was whether there was sufficient evidence to entitle the jury to find that he was present as a participant rather than an innocent bystander. The fourth issue was: if he was a participant, what objectively was the nature and scope of the common purpose to which he was a party?

[17] There was sufficient evidence to support an inference of antecedent concert to charges (5) to (7), or at least of spontaneous concert. Five propositions could be advanced. First, the character and scope of the common purpose in a case of this type are to be discerned by reference to what was foreseeable as liable to happen on an objective basis. There was no separate question of whether a particular accused had the necessary criminal intent (see the Lord Justice General in McKinnon (infra), at para 27). Secondly, the facts and circumstances of an event may yield evidence of the scope and character of an antecedent agreement (see Gordon: Criminal Law (3rd ed) Vol I para 5.32). Regard should be had to what has been done by a group, and from that an understanding may be derived of what had been intended. Thirdly, participation in the common purpose may be inferred by the quality of an accused's presence, if it were intended to aid or encourage the primary actor or actors and discourage or impede the victim or victims in his or their resistance or defence. Fourthly, it was a fallacy to say that, because the use of a lethal weapon readily invokes an inference of a common purpose to kill, therefore the use of a lethal weapon is incapable of implying a common purpose to wound. Hume at the passages cited (infra) was dealing with homicide and circumstances where the weapon carried was not lethal. There was a distinction regarding concert in the means of attack and concert in reaching the desired end. Fifthly, where presence at the crime was established, actions during and subsequent to the events which are inconsistent with innocence, including leaving the scene, failing to render aid and lying about involvement, may all be relevant to infer art and part guilt (Vogan v HM Advocate 2003 SCCR 564, Lord Kirkwood, delivering the Opinion of the Court at para 10). Spontaneous concert may be inferred from the number, distribution and location of the knife wounds. In this case, there had been seven wounds.

[18] The evidence first supported, in a number of different ways, the inferences necessary for a conviction on each of charges (5) to (7). First, the first appellant was present throughout the attack on the house and its occupants. In his interview, he had accepted that he had been at the house and had seen people fighting. He said that, when he had been coming down the road, he had seen his brother struggling with a man. The evidence, however, disclosed that, once the barrage of bottles had stopped, there were two men in the curtilage of the house. They retreated over the fence. At the same time, another two men, the first appellant and his brother, were on the pavement. This was before the complainers engaged with their attackers. The first appellant was identified by both Steven and John Paterson junior. So, the part of the interview about the first appellant arriving after the bottle barrage fell to be rejected. The jury could infer that his presence was not innocent and there was thus sufficient for a conviction on charge (5). In his interview, the first appellant said that he had left in the company of his brother and this must have been at the end of the incident. Secondly, the evidence was such that antecedent concert could be inferred from the attack on the house and its occupants. In that regard: it was a sequel to the first incident; the attackers came in a group; they were equipped with missiles; they were armed with weapons, for the purposes for which they were used; and the second appellant, who was best known to the occupants, made efforts to conceal his identity. Thirdly, the attackers assembled in stealth. There had been no shouting etc. prior to the attack. They then unleashed violence in a sudden and targeted way. Fourthly, the evidence yielded the inference that what had been intended had not simply been a hit and run on the vehicles and the house but included drawing the occupants from the house and attacking them when they emerged. All the accused had weapons and none withdrew when confronted. Fifthly, the attack on the house had involved extreme violence, with weapons being openly carried and used. All of this supported the inference that the character and scope of the common purpose included maiming the occupants, including any who put up resistance. It was conceded that the evidence disclosed that the first appellant had joined a concerted attack to cause severe injury on Jake Paterson. That concession having been properly made, there was no logical basis, in the absence of evidence to the contrary, for confining any inferences of concert to one victim alone or to the mode by which injury was to be inflicted. It was simply fortuitous that one complainer had gone left and the other right. Given that each victim had been stabbed several times in the upper back by downward blows when they were only a few feet from each other (quite possibly by different members of the group) after they had been disabled by cudgels, it could not be said that there was insufficient evidence as to the mode of assault if the common purpose was to maim. Sixthly, whether the blade or blades could be considered as in the same broad category of maiming weapons as cudgels was pre-eminently a matter of fact for the jury. The jury were entitled to take the view that the most serious injury had been caused by the blow from a blunt instrument to the head of Jake Paterson. The suggestion that the use of a knife was an unforeseen escalation lying outwith the scope of the concert was without substance. The jury were entitled to consider that there was sufficient evidence to find concert proved in relation to the end result as distinct from the type of weapon used to achieve it. There was an inherent defect in the defence approach that in today's Scotland it was not objectively foreseeable that in an attack, which included in its purpose the maiming of individuals, one person may carry a knife and use it. A jury would be entitled to take that view. It was a danger recognised in the evidence by Mr Pearson.

[19] In relation to the first appellant's encouragement of the actors and discouragement of the complainers, the jury had been entitled to consider that Jake Paterson had been felled by a blow to the head before Mr Walker got into trouble in the middle of the road. Jake Paterson had been unable to assist Mr Walker before he (Walker) had been seriously injured. The passages quoted from Hume (infra) answered the question about the first appellant's participation in that assault because he was adding to the terror and danger of that assault. For example, if Martin Black had been attacking alone, Mr Walker might have been able to fend him off but he was impeded from doing so because Jake Paterson was prevented from coming to his assistance by, amongst others, the first appellant.

 

(iii) DECISION

[20] The first appellant's submission that there was insufficient evidence in law to entitle the jury to infer that he was a party to any criminal purpose other than an assault against the complainer Jake Paterson with sticks and/or bats would, if well-founded, preclude his conviction on charge (5) (the breach of the peace) and of charge (6) (the assault on Steven Walker). The latter charge may, for convenience, be divided into two elements: first, assault by repeated punching on the head and body and by throwing bottles at the victim and, second, assault by repeated striking on the body with a knife or similar instrument, all to his severe injury and to the danger of his life. If there was sufficient evidence upon which the jury could return a verdict of guilty against the first appellant, at least to the extent of the first element, then that charge would require, subject to appropriate directions, to go to the jury. The directions would include whether or not the jury was entitled to return any verdict of guilty which included a reference to the use of a knife and to any consequences of its use. Directions of a similar kind would be required in relation to charge (7). It is convenient to deal with the matter of the use of a knife when considering the submissions made in criticism of the trial judge's charge.

[21] It is not now disputed that there was sufficient evidence for charge (7), subject to appropriate directions, to go to the jury. So far as concerns charge (5) and charge (6) (again subject to directions), the issue is whether there was evidence on which the jury could conclude that there was a common criminal purpose which embraced the breach of the peace and the first element of charge (6) and that the first appellant was participant in such a purpose.

[22] In our view clearly there was such evidence. The first appellant was identified as being among the attackers. He was seen outside the house at an early stage of what was a relatively short-lived incident. Although there was no direct evidence as to how he came to be among the persons outside the house (other than his account at interview which the jury would have been entitled to reject), his presence at that time, taken with his own actions thereafter, would allow an inference to be drawn that he had been present from the outset, including when the conduct referred to in charge (5) occurred. The evidence of his own actions, in the context of the general evidence summarised by the Advocate Depute, was also sufficient in our view, to allow an inference to be drawn that he was participant in a criminal purpose which was not restricted to assaulting any particular individual but extended to assaulting any of the occupants of the house who emerged and endeavoured to put up resistance. The inference was also open that the first appellant was participant in such a purpose which extended to the use of serious violence upon one or more persons.

[23] In these circumstances there was sufficient evidence to allow each of charges (5), (6) and (7) as directed against the first appellant to go, subject to appropriate directions, to the jury.


(c) Directions to the Jury

(i) THE CHARGE

[24] As regards art and part guilt, the trial judge, having given to the jury certain general directions on concert (none of which is criticised), continued (Transcript of Charge pp 40 et seq.):

"The critical question which has to be decided is whether there was concerted or separate and independent action. [In] the present case, the Crown...says that the evidence demonstrates a joint or common purpose and that you can infer that actings of each of the accused against the charge in question as directed fell within that purpose. The defence, obviously, say that no such conclusion can be drawn. What has to be done is to look at what [has been] proved, if anything, against each of the accused and to decide if you can infer beyond reasonable doubt from what he did that he was acting together with the other or others as part of the common criminal plan. If you do infer that then, in law, he is responsible for what the others did. If you can't infer that, each accused can only be guilty of what he himself did.

Reference was made in one of the speeches to the point that a mere bystander ... couldn't be guilty of art and part guilt of a crime. That would clearly be so in the case of a crime which is committed on the spur of the moment ... On other occasions, of course, presence may be enough if a plan has been formed in advance ...

So you see why it is necessary to look at [the circumstances] to see exactly what conclusion, if any, can be drawn as to the scope of a common criminal purpose and as to the role of any participants in it, before you reached any view ... remembering the burden of proof on all these matters is on the Crown.

The use of weapons calls for special consideration. When a weapon is used, even in a concerted attack by a group, an unarmed member of the group may be held responsible if he knew his companion was armed and was likely to use the weapon. This obviously is so if the crime has been planned in advance ... It may even arise on the spur of the moment. If an accused person, having seen his co-accused with a weapon in the course of an attack, joins in or continues the attack, then he may be regarded as guilty along with the co-accused of assault with the weapon from that point onwards. You'll see, of course, it's necessary to consider with particular care not only whether or not the use of a weapon may be regarded as part of the plan formed in advance, but also whether, if it's simply started being used on the spur of the moment, it was something that was able to be seen by a co-accused who continued with an attack or joined in an attack in the knowledge that the weapon had been brought into use and was likely to be continued to be used.

... I need to say ... a bit more about this. I've simply spoken in general terms about weapons so far. As I said, if two or more people form a common criminal purpose, either in advance or on the spur of the moment, to commit an assault involving the use of a particular weapon, then they are all criminally responsible for its use, regardless of which of them actually uses it. If a group of people form a common criminal purpose to commit an assault involving the use by one of them of a particular weapon in order to inflict serious injury - a wooden cudgel say - and at the last moment another of them produces another weapon which the rest did not know about and uses it also to inflict serious injury, they may still be criminally responsible for its use because this may still be within the scope of the common criminal purpose. In simple terms he has achieved the objective of the group and they must all take the blame.

For this to be the case, however, the weapon which is in fact used must be of a type which is within the contemplation of the participants in the common criminal purpose. A gun for example may not be of the same type as a walking stick. It may or may not be the case - and this is a question of fact - that a knife is of the same type as a baseball bat or similar object. There are obvious differences, but if they are both capable of inflicting serious injury when used as weapons, in that respect...they may be regarded as having a broad similarity and thus of being of the same type; that is to say as belonging to the category of dangerous weapons with which serious injury may be inflicted. It all depends on the exact nature of the common criminal purpose and whether the participants in it contemplated that a weapon or weapons was or were likely to be used and, if so, in what way. This is a question of fact to be decided on the evidence of the exact circumstances of the particular case. Remember, however, that the scope of the common criminal purpose should be discerned on an objective basis, but in the case of an individual accused, the question is what was foreseeable as liable to happen and hence what was or was not obvious in this respect. As I've already said, if a weapon is brought out and used by one accused and another accused sees this and either continues or joins in the attack then, in any event, they may both be held responsible for the use of the weapon; even if its use was not within the original contemplation of the second accused."

 

 

(ii) SUBMISSIONS

[25] The first appellant submitted that the trial judge had erred in directing the jury that a knife might be regarded as the same as a baseball bat for the purpose of establishing the scope of the common criminal purpose. A knife was a lethal weapon whereas a cudgel was not normally such (see the distinction made in Hume: Commentaries on the Law of Crimes (Bell ed.) I. 260, 264-5). Even if the jury had been entitled to infer that the common criminal purpose was to cause injury by the use of baseball bats, that did not entitle the same inference regarding the use of a knife, since that took the purpose into a different category. The issue was not a matter of fact for the jury, as the trial judge had directed, but a one of law (see the principles set out by the Lord Justice General (Cullen) delivering the Opinion of the Court in McKinnon v HM Advocate 2003 JC 29, SCCR 224, at paras 28-32; Peden v HM Advocate 2003 SCCR 605, which had been followed in Dempsey v HM Advocate 2005 HCJAC 6, SCCR 169, was also referred to). Even if it were a matter of fact, the trial judge had not made it clear that this was an issue they had to resolve. An explicit direction was required (Docherty v HM Advocate 1945 JC 89, Lord Moncrieff at 98-99). The alternative, if the jury had not found concert proved, had not been made clear (Cussick v HM Advocate 2001 SCCR 683, Lord MacLean delivering the Opinion of the Court at para 8). In any event, the trial judge had effectively given the jury the answer to the issue in his directions.

[26] The Advocate Depute replied that there had been no misdirection as to the law of concert. The trial judge had properly left it to the jury to consider whether there was a broad equivalence in the weapons employed in the context of a common purpose amongst the attackers to "give the people up at number 28 a good doing". He had also given an adequate direction on what to do if concert were not proved, namely to find each person guilty only of what he had been proved to have done.

 

(iii) DECISION

[27] The first appellant submitted that there was insufficient evidence that the scope of any common criminal purpose (whether antecedent or spontaneous), to which he had been a party, extended to the use or repeated use of a knife. At the trial a common law motion to a similar effect had been made on his behalf. Had the trial judge accepted that submission as well-founded, he would have been obliged to direct the jury that any verdict of guilty which they might return against the first appellant, in respect of either or both of charges (6) and (7), would require to be under deletion of the reference to the use of a knife or similar instrument (and of any aggravation of injury arising solely from such use). The trial judge declined to give such a direction.

[28] The issue on this part of the appeal concerns whether there was evidence on which the jury was entitled to find the first appellant guilty, on an art and part basis, of the use of a knife or similar instrument in the perpetration of an assault or assaults with non-fatal consequences. That turns on the scope of any common criminal purpose to which, on the evidence, the jury could conclude that the first appellant was participant.

[29] There is little direct authority on the matter. The principal authorities to which we were referred in the course of argument (Hume at page 260 and pages 264-6 and McKinnon v H.M. Advocate) are concerned with murder and with concert in cases of murder. Such authorities must be read having due regard to their subject-matter. They involve a different crime (murder), though they may be of some assistance with respect to the crime of assault where weapons are used.

[30] Hume (at page 260) makes it clear that, while certain weapons (of which he mentions swords and fire-arms) may in one sense be distinguished as being "lethal", any weapon may be used to kill. The difference, in the context of art and part guilt, between homicide "with the proper lethal instruments" and homicide in certain other cases "lies in the matter of proof only, and no deeper" (pages 265-6). He continues (at page 266) that all behaviour by persons present "as tends to impede, disconcert or intimidate the sufferer in his defence, is as decisive against any one, as the striking of a severe blow, or the doing of a direct injury to the person". In McKinnon the Lord Justice General, delivering the Opinion of the Court, observed, again in the context of concert in murder, at page 233D:

" ... it is clear from [Hume's] discussion of the subject of accession that the nature of any weapons which are carried and the way in which it is envisaged that they may be used have an important bearing on the guilt of the participants".

 

[31] Again in the context of a homicide, the trial judge in O'Connell v H.M. Advocate 1987 S.C.C.R. 459, where the fatal blow had been struck by an unidentified person wielding a hammer in the course of a concerted attack by a group with sticks and bricks, illustrated (at page 462) the issue for the jury's determination by contrasting the concerted use of bamboo canes with the unexpected use of a hammer and the concerted use of bricks, hammers and sticks with the unexpected use of a gun. He went on to direct the jury as follows:

"[W]here the weapons are of a broadly similar nature and all capable of causing death or serious injury, it is open to you - and I emphasise this - it is open to you to decide whether each or all of the persons involved in the common plan of assaulting with sticks and bricks should have anticipated the use of a weapon of a nature which was broadly similar. That would apply at whatever stage in the assault that weapon was obtained. But let me emphasise, ladies and gentlemen, that whether the use of a hammer was part of a common plan is a matter entirely for you".

 

On appeal it was held that the quoted direction, and other directions to a similar effect, were sound. The court continued:

"The matter was left to the jury to determine whether on the evidence they were satisfied that the hammer which had caused the fatal blows was similar to the sticks of wood. Mr. Daiches argued strongly that a hammer is a different kind of weapon from a stick of wood, but in our opinion it must depend upon the circumstances. The trial judge gave various examples to the jury. If, for example, the sticks with which the group had armed themselves had been light bamboo cane it might well be that one could not regard a hammer as a similar weapon. The sticks of wood here, however, were more substantial than that. The trial judge reminded the jury that Label No. 54 was a length of wood which might be described as a rectangular piece of wood about three or four feet long. If sticks of that kind were involved then, in our opinion, the jury would be well entitled to regard such sticks as lethal weapons capable of causing death or serious injury. The hammer likewise could be categorised as a weapon capable of causing death or serious injury. Whether or not the hammer should be regarded as a similar weapon to the sticks of wood was a question of fact for the jury. The matter was left to the jury to determine. It was entirely a matter for them ... ".

 

[32] In his commentary the learned editor suggests (at page 466) that there are two possible ways of approaching the problem in that case:

"The first is to treat the agreed plan as one to assault the victim with lethal weapons, or more narrowly with sticks and similar weapons, on the view that the assailants were indifferent as to the precise nature of the weapons involved, provided that these weapons were not wholly dissimilar, such as, e.g. pistols or perhaps even knives. The other is to accept that the agreed plan was to use sticks, but that it was reasonably foreseeable that one of the assailants would get carried away to the extent of using a hammer".

 

We note the editor's proviso with its qualified reference to knives.

[33] There may, we accept, be cases where the nature of the weapon unexpectedly produced and used and the manner of its use are such that no jury could properly conclude that its use in that manner was within the contemplation (in the sense of what is foreseeable) of the other participants in the particular criminal enterprise. Subject to that qualification, the issue will, in our view, ordinarily be one of fact and degree to be determined objectively by the jury. Special considerations may apply where, for example, only some specific weapon or weapons are agreed to be used or are, in the sense indicated, contemplated as being used in furtherance of the common plan. While weapons may have different characteristics, a knife is not as a matter of law different from a baseball bat. Much may depend on the manner in which the particular weapon is used. The use of a knife in the course of or associated with a serious assault involving the use of a baseball bat cannot in present times (when the use of knives in street violence is regrettably an all too common occurrence) be said in all circumstances to be beyond the scope of a criminal enterprise involving the use of serious violence, with the attendant risk of severe injury. If, as in the present case, the first appellant was actively participant in the use of serious violence against Jake Paterson, including the latter being struck on the head with a baseball bat (in the event contributing to severe injury, permanent impairment and the danger of life), we are not persuaded that the trial judge was bound to exclude from the jury's consideration the use of a knife to the back, also causing severe injury.

[34] If there was evidence that the first appellant was party to a common criminal enterprise to that extent in relation to that victim, then, regard being had to the evidence of the general nature of the common criminal purpose encompassing other persons who emerged from the house, the trial judge was, in our view, entitled to leave to the jury determination of whether an assault with a knife to severe injury upon another particular victim of the same general enterprise was within the first appellant's contemplation. It is immaterial that there was no evidence that the first appellant was directly involved in any assault upon Steven Walker.

[35] The first appellant submitted -

(1) That the trial judge had erred in leaving to the jury whether a knife was of the

same type as a baseball bat or similar object;

(2) That, if he had not so erred, he had not made it sufficiently clear that the issue

of whether these were of the same type was a matter for the jury to resolve; and

(3) That the trial judge had in this passage in effect told the jury that these

weapons were of the same type.

[36] We reject each of these submissions. For the reasons which we have given, we are satisfied that the trial judge was correct in directing the jury that whether or not the weapons in question were of the same type was a matter for them. We are also satisfied that he made it sufficiently clear that that was a matter of fact for their decision, as he had earlier advised were all matters of fact. There is, moreover, nothing in this passage to indicate that the trial judge was indicating to the jury that they should resolve that issue in any particular way.

[37] In the course of the discussion reference was made to Peden v H.M. Advocate and to Dempsey v H.M. Advocate. In the former case the appellant and a co-accused were both convicted on an indictment alleging the use of a knife and of a piece of wood, all to the victim's severe injury, permanent disfigurement and permanent impairment. The issue before the appeal court was whether the trial judge had misdirected the jury in relation to the question of concert. It was held that he had. Although in the result the appeal was allowed to the extent of substituting a verdict under deletion of the references to the use of the knife and to the injuries which had been caused solely by its use, no question arose of the kind which arises in this case. While during the material attack on the complainer the appellant had struck him once with a piece of wood, there is no suggestion that she was knowingly a party to the use of serious violence against him with a weapon similar to the knife, by which alone the severe injuries had been inflicted. In Dempsey (a homicide case), the issue before the appeal court was again the terms of the trial judge's directions. Where the Crown case was that the appellant must have seen the co-accused using a knife on the deceased, it was held that the appellant could have been convicted of murder only if the jury were satisfied that he had actual knowledge of the knife and its use and with that knowledge had continued with the joint attack on the deceased. In that case the appellant's actions appear to have been restricted to the hitting of the deceased on the arm with a cooking pot (when the deceased had come at him with a knife and a bottle) and thereafter grappling with the deceased on the ground. Again there is no question of any broadly comparable violence having, to the knowledge of the appellant, been used upon the deceased.

[38] The first appellant separately submitted that the trial judge had not made it clear to the jury what they should do if they were not satisfied that the requisite concert had been proved. Reference was made to Cussick v H.M. Advocate. Having considered the terms of the trial judge's charge (in particular at pages 37 and 40) we are satisfied that there is no substance in this submission.

 

The second appellant

 

(i)                  GENERAL

[39] The second appellant's core contention was that there had been insufficient evidence that he had been involved at all in the second incident. It is necessary to review the evidence specific to the second appellant in the context of the general picture already outlined above.

 

(ii) THE EVIDENCE

[40] Mr Walker had identified the second appellant as being involved in the first incident, when he was wearing dark coloured clothing (pp 35, 69). He did not identify him in the second incident.

[41] Steven Paterson also identified the second appellant during the first incident (p 238) and from the videotape of that incident (p 245). He identified the person with the balaclava (or ski mask) in the second incident as wearing dark clothes with (pp 262, 264):

"like a white stripe going round the collar with some design. I'm not actually sure. ... it was like a wee kind of stripe on the collar and that was the only thing I noticed".

 

He described his build as "Just kind of medium and he just blended in with everybody" (p 264). He was "floating about in the background" (p 274). He then described the second appellant from the first incident as wearing (p 293) "all black clothing apart from round the collar I noticed just the kind of white stripe". The person with the mask was wearing "exactly the same" (p 294).

[42] John Paterson junior, who had known the second appellant for years (pp 410, 453, 528), identified the second appellant in the first incident. He said that (p 409):

"He was dressed with a black like dressy top with a red collar and dark trousers ... [I]t was like a black zip-up cardigan type with just a small red beading round its collar."

 

He identified him in the second incident too. As already noted, he had seen his uncle Steven fighting with the second appellant (pp 432-3). His uncle was trying to fend off the second appellant and Martin Black. The second appellant was wearing a balaclava; a full face ski mask (p 436). He recognised him from his "clothing and like the build" (pp 437, p 544), notably the "red beading on his collar". His clothes were all black except for a red bit on the collar (p 525). It "was the red piping on the collar that gave it away" (p 526). It "stood out" (p 545). He had been wearing this during both the first and the second incidents (p 528). During cross- examination, it was put to Mr Paterson that the video of the first incident showed the second appellant wearing white sleeves from elbow to wrist (p 531). This had not been noted by Mr Paterson at the time (p 534) and he seemed to suggest that, at least at first during the first incident, he had not had white sleeves visible (p 535).

[43] Mrs Paterson made no specific reference to the second appellant, although she did mention seeing a person wearing dark clothing and a balaclava or some such face covering and wielding a stick (pp 603-4).

[44] Mr Pearson identified the second appellant during the first incident (p 640) wearing (p 641):

"a black top, black trousers with a bit of red round the collar".

He said that the person with the pickaxe shaft during the second incident, which he said that the second appellant had obtained in the first incident (pp 669, 809), was dressed in black with a balaclava (p 670). His collar was red and it was the same as the second appellant had been wearing during the first incident (p 671, cf p 789). That person was just standing about (p 672). Mr Pearson eventually accepted that, contrary to his testimony about him wearing all black during the first incident, the video showed the second appellant with white sleeves (pp 801-2). He continued to maintain that nevertheless his sleeves were all black during the second incident (p 803). He confirmed that the man he identified in the balaclava etc. during the second incident was of the same height and build as the second appellant (p 809).

 

(iii) SUBMISSIONS

[45] The second appellant submitted that the evidence of identification was insufficient as it lacked the necessary conjunction of testimony. In any event, it was not of sufficient quality, character and strength. For example, the witnesses had described his clothing as consisting variously of a white striped collar, a red beaded collar and a red collar. All had said that he was wearing the same in both incidents yet the video had shown him in the first incident with white sleeves from elbow to wrist. No jury, properly directed, could have concluded beyond reasonable doubt that the evidence was sufficient to identify the second appellant as the man in the balaclava during the second incident. In any event, there was insufficient evidence of the man in the balaclava participating in the incident. Steven Paterson had not said he was doing anything other than being in the background. John Paterson junior had him with a pole swinging it to keep Mr Walker at bay. There was no libel of an attack on Mr Walker with a stick. Mrs Paterson simply had him in possession of a stick and Mr Pearson said that he was just standing about, albeit with the pickaxe shaft. Adopting the line of the first appellant, the second appellant submitted that there was insufficient evidence against the second appellant on either charge of assault or that he knew of the presence of a knife.

[46] The Advocate Depute maintained that the evidence was sufficient to hold the second appellant guilty of each charge. Three witnesses had identified the second appellant as involved in the second incident. The issue of identification was one for the jury to resolve in light of what were appropriate directions by the trial judge. If the identification were correct, then, apart from the evidence of the second appellant carrying a weapon, the mere fact that he had been wearing a balaclava during the incident was not consistent with innocence. The second appellant had been peculiarly well known to John Paterson junior. There was evidence of him wearing a distinctive collar in both incidents. Whether he had white sleeves on the video, by virtue of his having pulled his black sleeves up, did not affect this. In identification, a person may have difficulty in pinpointing exactly why he knows who the person in a balaclava was, but the evidence here that it was the second appellant was sufficiently cogent to allow the matter to be left to the jury.

 

(iv) DECISION

[47] The second appellant was positively identified by three witnesses, Steven Paterson, John Paterson junior and Lee Pearson, as having been present in the course of the second incident. According to each of these witnesses he had been wearing a balaclava (or ski mask) at the time. Each of them had seen the second appellant without any face covering at the first incident. John Paterson junior and his family had known the second appellant and his family for many years. Lee Pearson gave evidence that the second appellant had at that incident obtained possession of the pickaxe shaft which he (Pearson) recognised in the hand of the masked man at the second incident. Although there were some discrepancies in the descriptions given by these witnesses of the upper body clothing worn by the man whose face was covered, these discrepancies were not, in our view, of such divergence that the evidence as a whole was insufficient in law on the matter of identification. We note that, although there was at the trial a substantial issue in relation to whether or not the second appellant was present at the second incident, no submission was there advanced that there was an insufficiency of evidence of identification of this appellant. The trial judge gave to the jury careful directions on the matter of identification; no criticism is made of these. The quality of the evidence was a matter for the jury. It was not such that no reasonable jury could have concluded that the second appellant was the man present with his face masked at the second incident.

[48] Two witnesses gave evidence that the man with his face covered had a weapon: Mrs. Pearson spoke to him wielding a stick and Lee Pearson to him having the pickaxe shaft. John Paterson junior spoke to the second appellant being involved with Martin Black in a fight with Steven Walker. Steven Paterson also spoke to his presence, albeit "just floating about". That evidence, taken as a whole, was clearly sufficient to allow the jury to infer that the second appellant was lending his assistance to the common criminal purpose against which the violence of the second incident occurred. In these circumstances this ground of appeal must be refused.

[49] The second appellant also adopted the first appellant's submissions on the wider legal issues. For the same reasons as apply in the case of the first appellant we reject these submissions in so far as made by the second appellant.


Disposal

[50] In the whole circumstances the appeal against conviction is, in each case, refused. Each case will be continued for consideration of the outstanding appeal against sentence.


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