Appeals Against Conviction And Sentence By (1) Gary William Sim; (2) James Edward Watson And (3) Paul John Watson
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Malcolm,Lord Justice General |
| Judgment Date | 19 May 2016 |
| Neutral Citation | [2016] HCJAC 48 |
| Court | High Court of Justiciary |
| Date | 19 May 2016 |
| Published date | 19 May 2016 |
| Docket Number | HCA/2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 48
HCA/2015/2913/XC, HCA/2015/2692/XC and HCA/2015/2606/XC
Lord Justice General
Lord Menzies
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEALS AGAINST CONVICTION AND SENTENCE
by
(1) GARY WILLIAM SIM; (2) JAMES EDWARD WATSON; and (3) PAUL JOHN WATSON
Appellants;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant (1): McConnachie QC, P Templeton, Solicitor Advocate; Wilson McLeod
Appellant (2): Duguid QC, S Walker, Solicitor Advocate; Hughes Walker
Appellant (3): I Patterson, J Stephenson, Solicitor Advocates; Thorley Stephenson
Respondent: Niven-Smith AD; the Crown Agent
19 May 2016
Introduction
[1] On 24 July 2015, at the High Court in Edinburgh, the appellants were convicted of a charge which libelled that:
“(2) on 20 September 2014 at Restalrig Circus, Edinburgh you ... did assault Thomas ... Lamb ... and did repeatedly strike him on the head and body, repeatedly kick and jump on his head and body, and otherwise ... inflict blunt force trauma on his head and body, strike him on the body with a garden fork, knife, or other ... instrument, ... and you did murder him ...”.
The first appellant was also convicted of an earlier assault on the deceased in the Tor pub nearby. All three appellants were sentenced to imprisonment for life, with punishment parts of 20 years.
[2] The appeal raises a number of grounds, all of which relate to the trial judge’s directions to the jury. This focuses attention on the general approach of the court to a judge’s charge as well as on the particular criticisms advanced.
The evidence
[3] On 19 September 2014, the deceased went to the Tor pub in Restalrig. The pub was local to the house where he stayed with his elderly father. He consumed a considerable amount of alcohol during the course of the day. At about 10.00pm the appellants and two others entered the pub. They too had consumed alcohol. The deceased was playing pool. Sometime just before 1.00am, the first appellant disturbed the deceased’s cue. There was a tussle and the deceased, who was of small height and build, fell down. When he got up, the first appellant threw him violently into a pile of chairs. The second appellant took hold of the first appellant. The third appellant kept the parties apart. In due course the first appellant would admit starting the fight with the deceased, whom he did not know.
[4] The deceased left the pub, saying “This isn’t over with”. The first appellant followed, having been told in which direction the deceased was likely to have gone. He alone was able to say what happened outside immediately thereafter. He maintained that he had chased the deceased, shouting “Gie’s ma phone”, to which the deceased had responded, “Come ahead you f...ing bam”. A fight in the street followed, during which the first appellant punched the deceased on the nose. The deceased dropped his jacket and escaped into his house.
[5] The second and third appellants left the pub shortly after the first appellant; with one of them saying “Paul, where are yous” and, after the reference to the deceased’s challenge, “Gary what are you doing”.
[6] The deceased undoubtedly went into his house. He re-emerged with a kitchen knife and a garden fork. Again, what happened next is uncertain. However, somehow the deceased came to be disarmed and on the ground. One neighbour, SS, described him lying on the road with three males, presumably the appellants, around him. The smaller of the three (the third appellant) was holding what appeared to be a straight object, like a stick. One of the men said, “Will I finish him off?”
[7] Another neighbour, RS, observed the deceased lying on his back motionless. Three men were kicking him repeatedly “very, very hard”. Two of them delivered five or six kicks. He saw the three running off laughing. Under reference to a statement, given to the police later that morning, he said that the taller of the three men (the first appellant) was “just standing”. The first appellant had been the last to leave the victim. One further witness, OC, also spoke to the three running off laughing. They were “hyper” and “high fiving” each other.
[8] Only the first appellant gave evidence in his own defence. His testimony did not impress the judge. His story was that, when the deceased had come out carrying the weapons, he (the first appellant) had run away. The second and third appellants had both attacked the deceased. The third appellant had held him in a bear hug and the second appellant had hit him with the fork. The deceased had fallen onto his back. Both brothers had kicked him on the head and body. The first appellant had told them to leave him alone. He did admit, however, that he might have kicked the deceased on the face. It had, according to the first appellant, been the third appellant who had shouted “finish him off”. The second appellant had then stabbed him with the fork. The second and third appellants had run away after kicking him like a football.
[9] The appellants eventually reached the house of the third appellant’s girlfriend, NA, where efforts were made to clean clothing and trainers. The third appellant had said, “Tam and Gary had a square go but [it] went too far and Gary jumped on his head”. The first appellant had been present at the time and had displayed no reaction.
[10] The pathology was not disputed. The deceased had sustained blunt trauma injuries to various parts of his head and a chest wound caused by the fork. The victim died of the blunt force trauma and the chest wound. He would not have survived even the trauma. The chest injury had cut the pulmonary vein and penetrated the aorta.
[11] The forensic evidence was that the second appellant’s Nike shoes had a pattern, which could have caused the stamping injuries on the deceased’s head. The pattern was consistent with the impression on the deceased’s face. The deceased’s blood was found on these shoes.
[12] When detained, the first and second appellants gave “no comment” interviews. Later, the second appellant had told a police officer “I tried to stop it. Somebody must have seen it from a window ...”. He would not elaborate on this. The third appellant gave a “mixed” statement in which he admitted being at the locus, but denied involvement. He blamed the first appellant. He (the third appellant) said that he had been very drunk. He had left the pub and had seen the first appellant fighting with the deceased. The first appellant had knocked the deceased to the ground and was punching, kicking and “stomping” on him. His brother had taken hold of the first appellant and told him that he was out of order. The third appellant said that he had just run off; that is to say he had not been involved in the fight.
Directions to the jury
[13] The judge said the following about concert:
“The normal point where there are several accused is individual responsibility and you've always got to keep that in mind, but in this indictment, … it is alleged, that all the accused were acting together … and this brings into play the rules of the law of concert, or, … art and part guilt, … I may use words like ‘in … concert to do this, that or other,’ or, ‘they were all in it together,’ that kind of phraseology. It all means the same thing.
Now, the basic rule is this, and this is very important …, ‘If two or more persons act together in pursuance of a common criminal purpose,’ …, ‘then the evidence against one becomes the evidence against the others, and if the jury is satisfied that the crime has been committed then all are guilty, though only one of them may have committed the physical act’.
There has to be affirmative proof ... that there was a common plan to commit a crime and that the accused was party, all of them, to the common plan. If there's no proof, if there's no plan, then it is individual responsibility. ... The common criminal purpose may vary. Sometimes it is planned. … or the common criminal purpose may be spontaneous and a jury have to make inferences from the number of people, the weapons, the words used, what was seen, the behaviour before, during and after of all of those involved….
And it is important, … [w]here a weapon is used, … the jury must find it established if they are finding concert that each accused knew that a weapon was being used. … So, that is the generality.
... You have to ask and answer these kinds of questions; what is the scope …of the common criminal purpose? … What is the extent of each of the accused being party to that purpose? You may have to consider what was the quality of their presence at the relevant time. You may have to consider whether, at the time the pitchfork was stuck into the victim, the others were kicking him or near him or around him or encouraging. These are all matters you have to think about, ladies and gentlemen.
You're entitled to consider, and must, indeed, consider the body. … it is eloquent of many injuries. You might consider the actions of the three accused before any of this happened, if you think that's important. You have to consider words overhead or spoken. You have to consider their behaviour at the murder scene and their behaviour afterwards.”
The trial judge then dealt with certain salient points from the witnesses’ testimony. He referred to RS stating that he saw the deceased being kicked by three men, but did not repeat what RS had said later, under reference to his statement, about the taller of the men “just standing”. He continued:
“Now, I direct you in this way; first of all, it is a large and obvious weapon in the hands of an assailant, is a garden fork, you would be entitled to infer from its size, from what was heard, that everybody knew the weapon was there. If you hold and accept that the three of them were around him, kicking him anywhere on the head or the body and one of them used the garden fork to stab him fatally, then it...
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