APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Philip	[2012] HCJAC 141 XC844/11 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by DAVID BROWN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: McLeod; Paterson Bell

Respondent: G Mitchell, QC, AD; the Crown Agent

23 October 2012

[1] On 16 November 2011, at the High Court in Glasgow, the appellant and his two co-accused, John Docherty and Vincent McDonald, were found guilty, by unanimous verdicts, of the attempted murder of the complainer at a flat in Wardie Road, Glasgow on 26 November 2010, by repeatedly punching, kicking, and stamping on his head and body, stabbing him with a knife or bottle on the head and body and throwing him down stairs to his severe injury, permanent disfigurement and to the danger of his life. All three accused were sentenced to eight years' imprisonment.

[2] The evidence was that the complainer had been in the company of the three accused and they had all ended up in the appellant's bedsit at his uncle's flat. Although the complainer could not recall the precise sequence of events, he said that he was attacked first in the bedsit and then in the bathroom. He did not recall being attacked by the appellant in the bedsit and could not be certain about him being attacked by him in the bathroom either. However, there was forensic evidence, notably from bloodstains and spots, that made it clear that both the bedsit and the bathroom had been the scenes of the assault. The forensic evidence continued to the effect that a pattern of heavy contact blood staining and blood spots found on the appellant's left shoe were typical of that found on the shoe of a person who had stamped on another, causing him to bleed. The appellant's jacket was found to have contact bloodstains and spots and his jeans had impact blood staining and smearing, all indicating the appellant's close proximity to an assault on the complainer. There was similar forensic evidence implicating the other two accused and there was no submission that there was insufficient evidence against any one of them.

[3] The two co-accused gave evidence explaining that their individual involvement in attacking the complainer, who had ended up in the street, had been minimal relative to that of the appellant. The appellant did not testify. In short, Mr Docherty had said that the appellant had had a knife and had repeatedly hacked at the complainer; something which appears inconsistent with the medical evidence. Mr McDonald also spoke to the appellant using a knife. Both blamed the appellant for throwing the appellant down the stairs.

[4] At the end of the episode the two co-accused had telephoned for an ambulance. The complainer was taken to hospital, where he underwent a successful emergency operation to counter the effects of a sub-dural haematoma, which would have resulted in death within hours of the assault.

[5] The defence speech opened with an acceptance that the appellant was guilty of assault to severe injury by kicking and stamping. It was also not disputed in the appeal that he was correctly convicted of the aggravations of permanent disfigurement and danger to life. The appellant's position, however, was that he was not guilty of attempted murder. In particular, having addressed the jury correctly on the definition of murder and explained that what was required was such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences, it was said that there were three reasons why the offence of attempted murder "had not been proved in this case". The first was the nature of the assault, notably that it was not one where weapons had been "predominantly used". Any wounds described by the doctors had been superficial. The second was the nature of the injuries. In particular, the life-threatening sub-dural haematoma had been caused by a blow which had not been of sufficient force to break any bone. Thirdly, there was the calling of the ambulance which, although not done by the appellant, was something which he might have been aware of and which the jury could have taken into account is assessing the appellant's attitude at the time.

[6] In her charge to the jury, the trial judge gave the standard directions on the definitions of attempted murder and murder; the latter involving the unlawful killing of another person either wickedly intending to kill or displaying such wicked recklessness as demonstrated that the accused had cared not whether his victim lived or died. Recklessness involved, according to the directions, committing an act or acts of such severity that they could easily lead to death. The trial judge continued by stating specifically:

"It is wrong to suggest that broken bones must result or that there must be weapons. You might think it obvious that kicking and/or stamping on a man's head and body may easily result in his death ...

... our law does not need weapons or broken bones for an assault to be an attempted murder. What it does require is an assault where the injuries sustained require medical intervention or ... occasionally sheer good luck to prevent death".

The trial judge said that the point at which the state of mind of the attacker was to be assessed was at the time of the attack. The fact that the ambulance was sent for thereafter did not mean that the intention to kill, or wickedness recklessness, was not present at the material time.

[7] The submission for the appellant was that the directions of the trial judge on the specific aspects of broken bones, weapons and calling the ambulance had misrepresented what the defence had suggested to the jury and had thereby undermined the defence. The charge had not been properly balanced. It was also said that the trial judge had been wrong to direct the jury about kicking and stamping on a man's head easily resulting in death. The direction on the requirement for an assault resulting in injuries requiring medical intervention to prevent death had also been erroneous. In essence, the submission was that the cumulative effect of the directions given, stating that suggestions had been made which had not, had resulted in unfairness to the appellant and thus a miscarriage of justice.

[8] The court is unable to sustain this submission. It is important to read the charge as a whole. It is clear that the directions on what was required for attempted murder were accurately given by the trial judge. Although there is some force in the submission that the trial judge perhaps misunderstood the precise nature of what was being suggested to the jury in the defence speech, it cannot be asserted that the trial judge's impression of what had been said was entirely without substance. The speech had contained submissions which the trial judge was entitled to address, notably whether the three reasons given meant that, as a matter of law, attempted murder "had not been proved". In respect of each of these, notably the absence of the use of weapons, the nature of the injuries, the absence of broken bones and the calling of the ambulance, the trial judge directed the jury in appropriate terms. What she said in respect of each point cannot be described individually or cumulatively as amounting to misdirection. In the context of the charge as a whole, the court is not persuaded that any imbalance has been demonstrated. In these circumstances, the court does not consider that any miscarriage of justice has occurred and therefore the appeal is refused.

DL