Matthew Mcfadden+andrew Spark V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Bracadale,Lord Clarke |
| Neutral Citation | [2009] HCJAC 78 |
| Docket Number | XC637/07 |
| Published date | 08 October 2009 |
| Court | High Court of Justiciary |
| Date | 08 October 2009 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Clarke Lord Bracadale | [2009] HCJAC 78 Appeal No: XC637/07 & XC669/07 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LADY PATON in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by (1) MATTHEW McFADDEN and Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: C Shead et C A Smith, Advocates; Paterson Bell, Edinburgh (for First Appellant)
Act: Carroll, Solicitor Advocate and M C McKenzie, Advocate; McClure Collins, Edinburgh,
(for Second Appellant)
Alt: K.D. Stewart, A.D.; Crown Agent
8 October 2009
Introduction
[1] On 31 July 2007 the appellants were found guilty of murdering Robert Gardner (then aged 36) "by punching and kicking him on the head and body, stamping on his head and body, by striking him on the head and body with a block of concrete and [striking] him on the body with a knife" (Charge 3). There had been an earlier assault on Mr Gardner (Charge 2) alleged to have involved four assailants, namely the two appellants, Joshua Donnachie, and Colin McAughey, but the subsequent murderous assault involved only the two appellants. The evidence established that death was caused by blows to the head with the block of concrete.
[2] The Crown ultimately withdrew the charge against Donnachie and McAughey. The two appellants were convicted of the initial assault and of the subsequent murder. The first appellant was convicted of murder on the basis that he had used the concrete block to strike the victim, while the second appellant was convicted of murder on the basis of concert.
[3] The relevant facts are summarised in the trial judge's report relating to the second appellant at pages 6 and 9-10 as follows:
"From the evidence it appeared that the [two appellants and their] companions decided to attack the deceased because he had refused to give them a drink or because he had ignored them...The initial part of the attack involved three or four people, including [the two appellants], kicking and punching the deceased and stamping on his head and body. Thereafter the second stage of the attack involved the [two appellants] pursuing the deceased after he got to his feet, and again bringing him to the ground, where they subjected him to a further assault of kicking and punching him about the head and body and stamping on his head and body. The [first appellant] left briefly to arm himself with a concrete coping stone and, when he returned, [he] knelt down and brought the coping stone down on the head of the deceased, uttering the words "Die you bastard". At that time the [second appellant] was engaged in a kicking attack upon the deceased and he persisted in it. Thereafter he knelt down and stabbed the deceased in the buttock, leaving the knife in place. When the [second appellant] continued to kick the deceased and when he stabbed him, he was aware that the [first appellant] had engaged in a murderous attack upon the deceased and the [second appellant] associated himself with that murderous attack by continuing with his attack upon the deceased who was lying helpless on the ground..."
[4] Both appellants appeal against conviction. The first appellant contends that his trial was rendered unfair by (i) the admission of evidence of statements by the second appellant naming the first appellant as the wielder of the concrete slab; (ii) the use of evidence of voice identification arising from words spoken by the first appellant on request at an identification parade. The second appellant, for his part, contends that there was a misdirection in the judge's charge in that the phrase "knew or must have known" was used in the course of directing the jury on concert.
The first appellant's First Ground of Appeal: statements of co-accused (Spark) outwith the first appellant's presence
The trial judge's report
[5] In his report, the trial judge describes evidence of conversations which took place after the attack, involving the former co-accused Colin McAughey, his parents, and the co-accused Spark (the second appellant). Mr Edward McAughey gave evidence that the second appellant described some of his own actions with the knife. He told Mr McAughey that "Maffie" (the first appellant McFadden) had hit the deceased with a slab on the legs. Mrs Elizabeth McAughey gave evidence that during another conversation the second appellant again described his own actions with the knife, and told her "Liz then that Maffie hit the guy twice that I seen on the head with a slab". The judge then continues:
"The evidence was objected to on behalf of the appellant as the statements were made outwith the presence of the appellant. I repelled the objection. Having done so, I gave the jury a direction at the time that the evidence was not evidence against the appellant and I repeated that direction in my charge to the jury (charge 30 July 2007 page 12, line 14 to page 14, line 5). The position adopted by the Crown was that the co-accused Spark was guilty of murder on an art and part basis in respect that he had seen the use of the slab and had thereafter continued in a kicking assault upon the deceased and, finally, had stabbed the deceased as he lay unconscious on the ground. There was support for that theory in the evidence of the pathologist, Dr John Clark (Crown witness no 33) who confirmed that the principal cause of death was a significant head injury. He had visited the scene and spoke of pieces of masonry lying beside the body. He witnessed the knife protruding from the buttock of the deceased and he expressed the opinion that the stab wound looked to him to be the final injury inflicted on the deceased as he lay motionless on the ground. The pathological findings fitted entirely with a deliberate stab wound as the deceased lay unconscious. The theory was also supported by Pauline McSorley (Crown witness no 71), a forensic scientist who confirmed that the scientific findings were consistent with the deceased being stabbed when he lay motionless on the ground, as a result of which blood seeped to the ground by operation of gravity. The Crown case against the co-accused Spark depended upon concert. In particular, it depended upon his knowledge that the deceased had been struck with the slab and, in that knowledge, he had joined in or persisted in the attack by kicking and/or stabbing the deceased. At pages 46-58 of my charge on 30 July 2007, I directed the jury generally about concert and how that related to the present case (page 52, line 7 onwards). As I explained at page 55, line 9 onwards, the Crown's position was that there were two stages to the concerted attack represented by charges 2 and 3 respectively. The second stage was the alleged spontaneous concerted murderous attack by the appellant and the co-accused Spark. I dealt with this at page 56, line 5 onwards.
The state of knowledge of the co-accused Spark was crucial to the Crown's case against him in respect of the charge of murder. It respectfully seemed to me that the evidence of Mr and Mrs McAughey of the statements by Spark shortly after the attack upon the deceased were relevant to the case against Spark. In particular, his statement that the appellant had struck the deceased with a slab either on the legs (statement to Mr McAughey) or on the head (statement to Mrs McAughey) was significant in showing that he had knowledge of the use by his co-accused, the appellant, of a slab in the attack upon the deceased. The jury could infer from that statement that Spark had special knowledge of the attack which could only have been available to those present at the time of the attack. Insofar as Spark also admitted to being involved with the deceased at the time when the knife entered the deceased's body, either as a result of an accident or as a result of a stabbing by Spark, the knowledge of the use of the slab by his co-accused was particularly relevant in the light of the subsequent evidence of the pathologist and the forensic scientist from which the jury could conclude that the insertion of the knife was the last act as the deceased lay unconscious on the ground. In the circumstances, I considered that the statements made by the co-accused Spark to Mr and Mrs McAughey were relevant evidence against the co-accused Spark and as I have already indicated to your Lordships, I gave directions to the jury to the effect that such statements were not evidence against the appellant."
The trial judge's charge
[6] The trial judge, in his charge (pages 12 to 14) directed the jury as follows:
"As I told you earlier, if you believe that one of the original four accused made a statement about the circumstances of the crime and mentioned the alleged involvement of any of his co-accused who was not present when the allegation was made, that is not evidence against the co-accused. As I explained earlier, the reason is that because the co-accused was not present when the statement was made, he did not have an opportunity to refute the allegation or to comment upon it and it is really a question of fairness, really. Such a statement, that is a statement made ... implicating a co-accused when the co-accused is not present, such a statement may only be evidence against the person who made it. And how might that apply in the present case, insofar as the two remaining accused are concerned?
Well, the examples that I recollect from the evidence relate to the testimony of Mr and Mrs McAughey, the parents of the former third accused [Colin McAughey]. You'll recall that each of them gave evidence about separate conversations that they had with their son, in the presence of the fourth accused [Spark] and in the course of these conversations, they allege that the fourth accused said various things to them, including a reference to the first accused, Maffie, hitting the deceased with a slab. Now, Maffie, or the first accused, was not present. If ... you accept that the fourth accused...
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