APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 123
Lady Paton Lady Dorrian Lord Drummond Young	Appeal No: XC717/12   OPINION OF THE COURT   delivered by LADY DORRIAN   in   APPEAL AGAINST CONVICTION   by   ANDREW PARFINOWSKI   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: G Jackson, QC, N. Allan, solicitor advocate; John Pryde & Co, Edinburgh

Respondent: G Wade; Crown Agent

 

17 October 2013

Background
[1] The appellant (the second accused) and his three co-accused appeared on indictment on a charge of murdering Brett Lodge, by repeatedly punching him on the head and body, repeatedly striking him on the head and body with baseball bats or similar implements, knocking him to the ground and repeatedly kicking and stamping on his head whereby he was so severely injured that he died. The libel against the fourth accused (Lumsden) was withdrawn during the course of the trial. At the conclusion of the trial, the jury convicted the appellant of murder as libelled. The first accused (Robertson) was also convicted of murder, under deletion of the words "repeatedly punch him on the head and body" and the words "repeatedly kick and stamp on his head". The third accused (McKail) was convicted of assault by repeatedly striking the deceased on the head and body with baseball bats or similar implements.

[2] In this appeal, the appellant maintains that the trial judge misdirected the jury on the various options open to them as between the appellant and his co-accused, and in particular that he erred in directing the jury that they could not convict the first accused of murder and the appellant of culpable homicide, although they could convict the appellant of murder and the first accused of culpable homicide.

 

Circumstances of the offence
[3] The appellant, his three original co-accused and the deceased were all close friends and had been so for years. On the night in question they were all in each other's company at the house of the fourth accused, where his cousin was having a party to celebrate the end of the school term. It seems that the deceased and the four accused spent most of the evening in Lumsden's room, separate from the rest of the party downstairs. Drink and drugs (cannabis) were being consumed by several of those at the party and it appears that the deceased and probably the appellant were quite drunk.

[4] At some point an argument developed in the bedroom between at least some of the accused and the deceased, over an X‑box belonging to the deceased, which at some point had been lent to Lumsden, and had subsequently gone missing. As a result of this argument the deceased stormed out of the bedroom and then out of the house. Whether the appellant was involved in the argument is not clear. What is clear is that the first accused, Robertson, followed him outside. The first accused said that he did so in order to calm down the deceased, who had flared up like this before and had gone on then either to injure himself or get into trouble. However at least one witness said that he heard the first accused say that he "was going to kick fuck out of" the deceased. Whether the appellant heard this is again unclear. When he left the house, Robertson took with him a large baseball bat. He could not explain why he did so. It was a very large baseball bat, seen by nearly all the witnesses and by the appellant.

[5] Robertson caught up with the deceased on a path across a grassy area next to the house. There was some sort of exchange between them, during which the appellant came up behind the deceased and began punching him. His motivation for doing so was unclear. The deceased turned to face his attacker and a scuffle ensued between the two of them during which the appellant was either knocked or fell to the ground. While the deceased was thus engaged with the appellant, and possibly on top of the appellant, and while he still had his back to Robertson, Robertson struck him on the back with the baseball bat. The deceased turned to face this new attack. The third accused, McKail, was also present and at that point he produced a small baseball bat. Both he and Robertson started to strike the deceased on the body with their bats, at the same time. Each of them was holding the bat with both hands and the blows were described as "swinging proper and forceful". The first accused then struck the deceased on the head with the baseball bat causing him to fall to the ground unconscious. The trial judge explains that the appellant was in close proximity to this attack and the jury were entitled to infer that he saw it. The first and third accused then made off. The appellant then proceeded to go over to the deceased and either kick, stamp or jump on his head. The appellant then also made off.

[6] The trial judge tells us that all the witnesses agreed that it was the first accused who struck the deceased on the head with a large baseball bat, and that it was the appellant who originally punched him and eventually either kicked or stamped on his head. The whole incident appears to have been a fast-moving one which was over very quickly. The summary which we have given is what appears to be accepted as a generally accurate summary of at least the sequence of events, but it must be stressed that during the trial accounts of events from different witnesses varied greatly. This is of significance to the present appellant, because accounts of his actions once the deceased had fallen to the ground varied from a kick or kicks in light canvas footwear, to the ribs or the head, to jumping or repeated stamping on the head of the deceased. The evidence showed that the appellant was wearing light canvas shoes at the relevant time. As one would expect in a swift moving incident of this type, there were other discrepancies relating to who did what, and at what point. The trial judge notes in his report that "there were many versions of what actually transpired". It would of course be for the jury to resolve any discrepancies which existed.

[7] The deceased was initially taken to the Accident and Emergency Department of Edinburgh Royal Infirmary where it was obvious that he had sustained a serious head injury, as a result of which he was transferred to the neurosurgical unit at the Western General Infirmary, where he was operated on to relieve the pressure on his brain from an extra‑dural haematoma which was associated with a skull fracture. The deceased remained in the intensive care unit until 9 July 2011 when it became clear that his condition had deteriorated to such an extent that a decision was taken, after consultation with his family, to switch off his life support system.

[8] In his original report, the trial judge records that the extra‑dural haematoma and skull fracture had been caused by "the blow to the head". In context, it appears that the blow to which he was referring was the blow with the baseball bat to the front of head, which had felled the deceased and rendered him unconscious. The trial judge was asked to provide a supplementary report on this matter, in which he notes:

"I think it is fair to say that the general consensus was that a single blow from a heavy baseball bat could alone have caused the injury/injuries which resulted in the deceased's death. That is, the skull fracture, the haematoma and the contusions, which all combined to cause the death, could have resulted from a single blow with the baseball bat which the pathologists were shown (Crown label No 9).

However, it is also fair to say that none of the pathologists were prepared to exclude the possibility of multiple blows and the Crown pathologist (Robert Ainsworth) went as far as to say that he was of the view that a significant kick or kicks could not be excluded as the cause of the trauma.

.......

On the medical evidence, 'light' kicking with canvas shoes could not have caused nor contributed to the fatal injuries suffered by the deceased".

 

It is clear, nevertheless, from the trial judge's summary of the medical evidence that the advocate depute was correct to say, in her speech to the jury that it was:

"....the import of the evidence from the doctors and the pathologists, specifically, that they favoured the explanation that the injuries were caused by that blow, that one blow to the head with the baseball bat".

 

The Crown position therefore was, and remained, that it was the blow to the head from the baseball bat wielded by Robertson which caused the fatal injury, and, although the kicking by the appellant "would not have helped", by that stage the fatal wound had been inflicted.

[9] Accordingly, the crown case against Robertson was that he was guilty of murder, as actor, having delivered that blow with wicked recklessness as to the consequences. His actions, the crown submitted, could constitute nothing short of murder.

[10] The basis upon which the crown sought a conviction of murder against the appellant was that he acted in concert with Robertson, and McKail, and that by continuing to assault the deceased by kicking or stamping to his head after he had been felled by the blow from Robertson, he adopted the actions of Robertson in delivering the fatal blow with the baseball bat.

[11] The Crown made two concessions which should be mentioned at this stage. First, they conceded that if Robertson and McKail had run off after the fatal blow had been delivered, but before the appellant had kicked or stamped on the deceased, then they could not be held responsible for the kicking or stamping. The second concession related to the position of McKail. The Crown argument in relation to McKail was that he acted in concert with Robertson in an assault with weapons and was responsible for the death. However, although "...he involved and associated himself ..to the point of the fatal blow, ......he does not have the necessary wicked recklessness needed to convict of murder", and the jury were invited only to convict him of culpable homicide.

[12] Whether these concessions were well made was not a matter for determination in the appeal before us. They clearly led to the trial judge giving the jury certain directions. For example in relation to the position of Robertson, the concession led the trial judge to direct the jury, contrary to the crown submissions, that in the event that they concluded that only Robertson and McKail were acting in concert, they could only convict Robertson of culpable homicide. Again, whether these directions were properly given was not a matter upon which we require to adjudicate.

[13] In addressing the jury the solicitor advocate for the appellant accepted that his client was responsible for the original punching and the eventual kicking of the deceased, but invited the jury to convict of assault only, on the basis of an argument that the appellant had not acted in concert with either the first or third accused. (The basis of this approach is not wholly clear: it seems to have been on the basis that it could not be said with certainty that he had seen the assault with the bat(s)).

[14] In his charge the trial judge explained to the jury the definitions of murder and of culpable homicide, and the mens rea required in each case. He also gave detailed general directions on the nature of concert, including reference to circumstances in which one attacker may be said to have accepted an escalation in the degree of violence at the hands of another attacker. None of these general directions was criticised. However, the trial judge then turned to address various options that might be open to the jury in respect of each accused, observing in doing so that "a lot of this depends on your view of concert and whether it's been established or not". He addressed the options which the jury might adopt if they concluded: that all three accused had acted in concert; that any two of them had done so; and that there was no concerted attack at all. We do not require to address most of these in detail, since the argument concentrated on a comparison of the directions which the trial judge had given in relation to the appellant and the accused Robertson, on the assumption that the jury accepted that they were involved together in a concerted attack. The trial judge had directed the jury as follows:

• That if they accepted that the appellant was not in concert with anyone, or that they could not infer that he must have seen the blow to the head with the baseball bat, they could only convict him of assault
• That if they were of the view that the actions of Robertson did not have the quality of wicked recklessness, they could convict him not of murder but of culpable homicide
• That if they took the view, that although Robertson and the appellant acted together, Robertson's strike to the head did not meet the test for murder, but the continuation of the attack by the appellant "upped the ante", so that although the blow with the bat was not wickedly reckless, the kicking or stamping thereafter was, they could convict Robertson of culpable homicide, and the appellant of murder
• However, what they could not do, in finding that Robertson and appellant acted in concert, would be to find Robertson guilty of murder and appellant guilty of culpable homicide

 

Submissions for the appellant
[15] Essentially the appellant's argument was that in his case the trial judge wrongly excluded from the jury's consideration a verdict of culpable homicide, in circumstances where they decided to return a verdict of murder against Robertson. In the circumstances of this case it was perfectly open to the jury to convict the Robertson of murder but the appellant of culpable homicide. Senior counsel for the appellant submitted that the directions complained of could not have failed to confuse the jury, who would wrongly understand that, once they had decided (as they were entitled to do) that the first accused was guilty of murder, they could come to the same conclusion in respect of the appellant without applying thought (a) to the view they took of the nature and extent of his concert with Robertson, (b) to the question whether there were striking differences or a disparity between his degree of participation and that of Robertson such as would justify discriminating verdicts as between them, (c) to the question whether it was a necessary corollary of their verdict on Robertson that the same degree of mens rea be attributed to the appellant, and (d) to the relative degree of recklessness to be attributed to the appellant as distinct from Robertson. It was submitted that there was both a legal and realistic option that the first accused and the appellant were acting in concert, but that there should be discriminating verdicts. The jury could have been satisfied that the first accused, who dealt the fatal blow, had the mens rea for murder, but that the appellant did not. In that situation, which was open to the jury on the evidence, they should have been directed that they could find the first accused guilty of murder and the appellant guilty of culpable homicide. It was submitted, under reference to Melvin v HM Advocate, 1984 SCCR 113 that this was a classic example of a case in which such a distinction was available. In the present case the involvement of each accused was quite different: one wielded a baseball bat to the head; the other delivered a kick which, on the evidence, "would not have helped" (the advocate depute's phrase) but did not contribute to the death. It is materially different, yet the jury were not allowed to make that distinction.

[16] Moreover, the trial judge approached the case upon the basis that if the jury concluded that the appellant had not acted in concert with the use of the bat, then he could be convicted only of assault: in other words, the only options available to them were to convict the accused of murder, by virtue of his acting in association with the use of the bat, or of assault in the absence of such association. In fact, it would have been open to the jury to convict of culpable homicide in either of these scenarios, depending on the view which they took of the evidence. On one view the direction in relation to assault might be seen to be favourable to the appellant, but in reality, in emphasising that a verdict of culpable homicide was not open to the jury in respect of the appellant in any circumstances, it would have reinforced the effect of the original misdirection.

[17] Reference was made to Malone v HMA 1988 SCCR 498 and Docherty v HMA 2003 SCCR 772.

 

Submissions for the Crown
[18] The advocate depute submitted that the case turned very particularly on its own facts and circumstances and the evidence in the case, and on that evidence the directions were appropriate. There had been no misdirection. The advocate depute acknowledged that the issue would usually be one for a jury to assess, but submitted that the circumstances of this case were far removed from the sort of differences which existed between the accused in cases such as Melvin. Here the appellant, after the main blow had been inflicted, assaulted the deceased to the same part of the body, the head. If in doing so he had seen the main blow, his actions were clearly indicative of a concerted attack from which the mens rea of recklessness could be inferred. If the fatal blow was administered with wicked recklessness and was observed by the co‑accused, it would be illogical for the wicked recklessness to apply only to Robertson and not to the appellant. If the appellant saw the baseball bat attack and proceeded to do what he did, the result for him would have to be murder.

[19] There could only be a differentiation between different participants in a concerted attack where the differences in the level of involvement were striking. That was why each case turns on its own facts, and why the establishment of a common criminal purpose was critical. If the use of the bat was deemed to be wickedly reckless, it made the scope of the concert murderous: anyone who acceded to it could only have a murderous intent.

[20] Three questions required to be asked: First whether the accused were acting in concert? Secondly, if so, what was the scope of that concert? And finally, were the actings of the parties so strikingly different as to justify the jury in returning discriminating verdicts?

[21] This was a case of spontaneous concert in which the common purpose may originally have been mere assault but which progressed to a murderous common purpose when the large bat was used on the head of the deceased in circumstances where that must have been witnessed by this appellant. The scope of the purpose of anyone who joined in the attack after that could only be murderous. The actions of the appellant and Robertson could not be considered to be strikingly different: both involved blows to the head of the deceased, in the appellant's case on a man who is already injured and on the ground. As to the direction that if the appellant did not see the bat, all that was left was assault, such a direction was advantageous to him. Reference was made to Gordon's Criminal Law 3^rd Ed, para 5.58 and McKinnon v HMA 2003 SCCR 224

 

Discussion
[22] Where two accused are charged with murder in concert there is no logical inconsistency between a verdict of guilty of murder against one and a verdict of guilty of culpable homicide against the other where there is no evidence of a deliberate and concerted intention to kill and the case does not involve any antecedent intention to carry out a crime such as assault and robbery. Where the evidence permits it, a jury is entitled to assess the relative degree of recklessness attributable to each accused (Melvin v HM Advocate, 1984 SCCR 113, per Lord Cameron at page 117; approved in Docherty v HM Advocate, 2003 SCCR 772 at page 777). Normally such a distinction can be justified only if the evidence discloses a possibility of a finding that there were striking differences in the relevant conduct of each of the assailants. What matters in a case such as this is what the particular accused knew or agreed to, what was the nature of the criminal enterprise to which he became a party, and what degree of violence was to be expected during the carrying out of that enterprise. (McKinnon v HM Advocate, 2003 JC 29) The appropriate approach in charging a jury in a case of concert is set out in Cussick v HM Advocate, 2001 SCCR 683. The jury must be told that they must focus on the position of each individual throughout the incident and the question as to whether he was part of a murderous purpose. The jury must first consider what evidence they accept which implicates each accused separately, they should be directed as to what they should do if they are satisfied that there is sufficient evidence against each accused and they should then go on to consider the law of concert and its application to the evidence which they accept. The alternative verdict of culpable homicide should only be withdrawn from the jury with great caution; the question is ultimately one of fact, and the trial judge should not take this course unless he is satisfied that there is no basis at all for the verdict in the evidence (Brown v HM Advocate, 1993 SCCR 382).

[23] The trial judge in his report, explains that although fully accepting that there may be cases in which one accused in a concerted attack which results in death can be convicted of culpable homicide and another can be convicted of murder, he considered that it would be illogical for the jury to convict Robertson of murder and the appellant only of culpable homicide, saying that:

"If the jury concluded, as they were entitled so to do, that what the first accused did by striking the deceased on the head with a baseball bat displayed the necessary wicked recklessness such that he was guilty of murder then if they held that the appellant had associated himself with that murderous attack by kicking or stamping on the now unconscious deceased's head, it would be totally illogical for him to be convicted of the lesser charge.

Had the kicking or stamping been before the baseball bat strike things may have been different, but the appellant, if he saw the murderous attack and then associated himself with it, must be guilty of murder."

 

The critical point in this passage is the phrase "then if they held that the appellant had associated himself with that murderous attack". Of course it was open to the jury on the evidence to conclude that the appellant had associated himself with a murderous attack, and to convict him of murder. The question is whether, on the evidence, it was an inevitable consequence that they should do so. We cannot say that it was. Whether he had done so was a matter for the jury to determine on the evidence before them, and we cannot say that there would have been no basis at all upon which they might have returned a verdict against the appellant of culpable homicide. In our view that option should have been left for the jury to consider.

[24] This was not a case of antecedent concert, where the adoption of a prior plan must, almost inevitably, lead to the conclusion that the mens rea was the same for each participant in the plan. It was rather a case of spontaneous concert, in the absence of any intention to kill, and where, on the crown submission, the common purpose may have changed in the course of events. It was relatively clear that Robertson had inflicted the fatal blow. In relation to the appellant it was critical for the jury to determine the nature and extent of the criminal purpose to which they were satisfied that he had been an accessory, and in particular whether they were satisfied that he was part of a purpose which had become a murderous one. Such an assessment would turn on their own assessment of the evidence in relation to the appellant's participation. It would turn on their assessment of what might have been apparent and obvious not only to a participant who delivered the fatal blow (Robertson), but in the case of the appellant, to a participant who saw the blow being delivered. His proximity to the event at the time, the time lapse between the blow and his subsequent actions and the exact nature of those actions were all matters which might have a bearing on whether the jury could be satisfied that he could be said to have participated in a murderous attack. It does not follow that the mens rea of the first accused was necessarily that of the appellant, yet it appears to us that this is the basis upon which the trial judge proceeded to give the direction that they could not convict the appellant of culpable homicide if they convicted the first accused of murder. The only basis upon which the jury were left with the option of culpable homicide for the appellant was if they also concluded that the first accused was guilty of culpable homicide rather than murder. In this case, the Crown accepted that the first accused dealt the fatal blow with the baseball bat, and the evidence was such that it was open to the jury to form the view that the appellant subsequently lightly kicked the deceased with canvas shoes (possibly to the ribs and not the head) which, on the expert evidence, could not have caused nor contributed to the fatal injuries suffered by the deceased. On the evidence, it could be said that there was scope for a finding that there were striking differences between the actions of the first accused and the appellant. Of course, it was also open to the jury on the evidence to conclude that he had in fact repeatedly stamped on the head of the deceased.

[25] However, that assessment was uniquely one for the jury to carry out. In our view the jury should have been directed that they could find the first accused guilty of murder and the appellant guilty of culpable homicide.

[26] The misdirection was a material one, since it deprived the jury entirely of a line of reasoning which might have resulted in their distinguishing between the actings of the appellant and Robertson. Moreover, in circumstances where they concluded that the first accused was guilty of murder, the misdirection deprived the jury entirely of considering the option of culpable homicide in the case of the appellant. In the result, the misdirection, in our view, constituted a miscarriage of justice. We shall accordingly quash the conviction.