APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Paton Lord Bonomy	[2010] HCJAC 37 Appeal No: XC522/09 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST CONVICTION by DANIEL McLEAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Carroll, Solicitor Advocate; Paterson Bell, Edinburgh

Respondent: Scullion, AD; Crown Agent

28 April 2010

[1] Daniel McLean appeals against his conviction on 17 July 2009 for the attempted murder of Steven Andrew Bremner, on the ground that the verdict was one which no reasonable jury, properly directed, could have returned, in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The charge of which the appellant was convicted was in these terms:

"(2) on 6 September 2008 at a public lane near to 112 Mansfield Estate, Tain, you ... did assault Steven Andrew Bremner ... and did [repeatedly] strike him on the neck and body with a knife or similar instrument, all to his severe injury, permanent disfigurement and to the danger of his life and you did attempt to murder him, and you did previously evince malice and ill-will towards him."

In returning their verdict the jury deleted "repeatedly".

[2] The Note of Appeal is a rather discursive document in which the basis for the appeal is set out principally in paragraphs (viii), (ix) and (x). The contention is that the deletion of "repeatedly" meant that the jury did not attribute all the injuries sustained by the complainer to the appellant and must have decided that the appellant did not act alone but in concert with another unidentified; that was inconsistent with the case presented to them by the Crown and involved a determination on the basis of the law of concert on which they had been given no directions.

[3] The complainer had four injuries that have a bearing on this appeal. A cut to his throat and a deep slash near the right armpit could have been the result of two blows, but probably were the result of one. A stab wound to his back which punctured a lung was the result of a separate blow. There was also a small laceration just below the left nostril.

[4] Mr. Carroll, solicitor-advocate for the appellant, explained that the Advocate depute had invited the jury to attribute the stab wound to the back as well as the wounds to the neck and armpit to the appellant. He had relied on the evidence of the appellant's step-brother, Scott McCarrick, who was one of either four or five people present in the lane. His account had the appellant and the complainer speaking to one another on the path, while he was looking away and talking to a friend of the complainer called Urquhart. Although he did not see the assault nor any knife, he heard a scuffle, turned and saw the complainer, already injured, walking towards him. He recounted that the appellant was the person closest behind the complainer, with a man called Macleod further away. The trial judge directed the jury that from the evidence of McCarrick they would be entitled to draw the inference that what he was describing was basically the appellant attacking the complainer. He also went as far as to say that, unless the jury were prepared to accept his evidence in its essentials about what happened in the alleyway, there would not be sufficient evidence upon which they could base a conviction. Mr Carroll's submission was that, taking the Crown position and the trial judge's directions together, the only basis for conviction presented to them and on which they were directed was that the appellant was exclusively responsible for the assault. The verdict left at the very least the stab wound to the back unexplained and meant that there were a number of possible explanations for that, including that they had rejected the evidence of McCarrick in part and thought that he was involved.

[5] Mr Carroll made passing reference to the case of Rooney v HM Adv [2007] HCJAC 1, 2007 SCCR 49. In responding, the Advocate depute described the test for success in an appeal based on section 106(3)(b) as "demanding". We note that it is open to the court to interfere with the verdict of a jury on this ground only where it can be said that no reasonable jury could have been satisfied beyond reasonable doubt that the accused was guilty. Whether that is so will always depend upon the particular circumstances of the individual case. The few cases in which an appeal has been advanced successfully under section 106(3)(b) have depended very much on their own particular circumstances - see in particular E v HM Adv (sub nom AJE v HM Adv) 2002 JC 215, 2002 SCCR 341, and Rooney (above).

[6] The Advocate depute's principal submission was that the verdict was consistent with a coherent body of evidence that supported the Crown case. The Crown case was that the complainer was attacked from behind and that the attacker was the appellant. There was no credible alternative. The opinion of Mr McKerrow, consultant surgeon, was that the injury to the neck was consistent with the complainer's head being pulled back from behind and a blade being drawn across his throat. The pulling back of the head explained the laceration in the vicinity of the nose as having been caused by a fingernail. It was also his opinion that the cutting of the throat had been committed with such a degree of force that it continued across and penetrated deeply into the area of the complainer's armpit. The stab wound to the back was a completely separate injury. While Mr McKerrow acknowledged that there were other possibilities including that the neck, armpit and face injuries were caused from the front, his opinion was clear that they were likely to have been inflicted in an attack from behind. Since the jury had been directed that they could not convict the appellant unless they accepted the evidence of McCarrick in its essential parts, they must have done so. That evidence also was indicative of an attack from behind.

[7] The Advocate depute then identified the other circumstantial evidence that combined with the evidence of McCarrick and McKerrow to make a coherent and compelling case against the appellant. The attack had taken place around 7.30am. A number of witnesses gave evidence of events in the earlier hours of the morning when the appellant had exhibited animosity and aggression towards the complainer. Danielle Baillie spoke of an argument between them in the house at 137 Mansfield Estate to which the reaction of the appellant was to arm himself with a hammer and a wrench. Charlene Fraser saw the appellant leave the house with the hammer and wrench following the complainer's departure. This was two to three hours before the attack. Ross George McQuillan said that he saw the complainer and the appellant shouting. The appellant had a weapon in each hand. The complainer was unarmed. Jamie McCarthy saw the appellant in possession of a black-handled knife at No 137 and putting it into the waistband of his trousers before he left at 5 or 6 am. Kevin Grant, who was also at No 137, heard the appellant say that he was going to "do" someone. Again that was in the early hours. In general the evidence of these earlier events leading up to the attack was vague because of the effects of alcohol on the witnesses. Calum Fleming saw the appellant and another at 6.22am walking from the direction of 112 Mansfield Estate towards 137 and sounding aggressive, but not towards each other.

[8] The Advocate depute also identified incriminating evidence flowing from the behaviour of the appellant after the event. Later that morning Kevin Grant saw the appellant in an agitated state, nervous and anxiously packing. He said that he needed "to get out of here". Emma Flinn and Shari Sutherland saw the appellant leaving at around 11am. He got into a car with Macleod and Lisa Inglis. He lay down in the back in what they considered to be an attempt to conceal himself. A bag or bags were loaded into the car. Lisa Inglis was driving and Macleod was in the passenger seat. They took an unusual route to Inverness which, according to Lisa Inglis, was on the instructions of the appellant who had asked her for a lift. He said he was "going down the road", which she took to be a reference to Glasgow. When they were stopped by police officers just before 1pm on the Struie Road, the appellant made certain remarks which the jury could regard as incriminating. The same applies to certain things said when he was formally arrested. A knife resembling the one he was seen with was found discarded on the route the car took to Inverness, and Inglis described a breeze coming from the back window of the car at around that point in the journey.

[9] The Advocate depute acknowledged that there was evidence that the appellant was not the attacker and in particular that, albeit for the first time during cross-examination by the Advocate depute, the appellant had stated that McCarrick was responsible. Some support for that proposition could be found in the evidence of Macleod. However, the evidence of the appellant and Macleod was inconsistent with statements they had given to the police denying that Macleod was present at the locus, and in the case of Macleod's statement also denying that McCarrick was present. There was also blood-staining on the back of a t-shirt worn by Scott McCarrick which was consistent with him being close to the complainer when he was bleeding. McCarrick had hidden the t-shirt after the event. However there was also evidence that that blood-staining was consistent with McCarrick ducking under the complainer as the complainer moved towards him, as McCarrick had said.

[10] We agree with the submission of the Advocate depute that the jury plainly accepted the evidence of Scott McCarrick in its essentials. That indicated an attack from behind. That is consistent with the evidence of Mr McKerrow. The evidence of Mr McKerrow also pointed to there being two significant blows, one to the neck which became imbedded near the armpit and one to the back. In our opinion, and as also submitted by the Advocate depute, the deletion of "repeatedly" reflects the acceptance by the jury of the evidence of Mr. McKerrow that one blow caused the injuries to the neck and the area of the armpit. There were thus, in the determination of the jury, two significant blows - one cut or slash to the neck which ended at the armpit and one stab wound to the body at the back. That the appellant "did strike him on the neck and body with a knife" is a verdict which is entirely consistent with the opinion that Mr McKerrow gave of how the blow to the neck was administered and with their being a separate blow to the back. Such a finding reflects the Crown case which was firmly to the effect that there were two blows for which the appellant was responsible. It is perfectly logical for the jury to have concluded from that evidence that the appellant did not stab the complainer repeatedly on either the neck or the body.

[11] So far as other possible interpretations of the verdict, as suggested by Mr Carroll, are concerned, we again agree with the Advocate depute that they are entirely speculative. We accept his submission that, if by deleting "repeatedly" the jury did intend to confine the verdict to the injuries to the neck and armpit, all that can legitimately be inferred is that it was not proved to the satisfaction of the jury beyond reasonable doubt that the appellant inflicted the stab wound to the back. To suggest that that indicates a finding of concerted action by the appellant and another, or others, or some other scenario, would in the circumstances of this case be pure speculation.

[12] There is no reason in this case to think that the jury did not address the evidence carefully and apply the directions they were given. Approaching the matter in that way, we consider that the only realistic alternative interpretations of the verdict are those identified by the Advocate depute and that the former is by far the most likely. In neither case can it be said that the verdict was other than a reasonable one.

[13] This appeal is accordingly refused.