William Johnston (junior)+charles Woolard V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Wheatley,Lady Paton |
| Judgment Date | 21 April 2009 |
| Neutral Citation | [2009] HCJAC 38 |
| Published date | 21 April 2009 |
| Docket Number | XC9/06 |
| Court | High Court of Justiciary |
| Date | 21 April 2009 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Wheatley Lady Paton Lord Reed | [2009] HCJAC 38 XC9/06 and XC18/06 OPINION OF THE COURT delivered by LORD REED in APPEALS AGAINST CONVICTION by WILLIAM JOHNSTON First Appellant; and CHARLES WOOLARD Second Appellant against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the first appellant: Shead, Mackenzie; PDSO
For the second appellant: Scott, Solicitor Advocate; Adams Whyte
For the respondent: Prentice, QC, AD; Crown Agent
21 April 2009
Introduction
[1] During 2005 the appellants stood trial on an indictment which charged them with the murder of Grant McDonald ("the deceased") on 7 May 2005 at a public house in Edinburgh. On 2 December 2005 they were each convicted of the charge, subject to deletions made by the jury. The effect of the jury's verdict was to convict the first appellant in the following terms:
"you .... did assault (the deceased), seize him by the body and restrain him, punch him on the head whereby he fell to the ground, repeatedly punch him on the head and body, whereby he was so severely injured that he died on 8 May 2005 at the Western General Hospital, Edinburgh and you did murder him".
The second appellant was convicted in the following terms:
"you .... did assault (the deceased), repeatedly kick him on the head whereby he was so severely injured that he died on 8 May 2005 at the Western General Hospital, Edinburgh and you did murder him".
[2] The implication of the verdicts is that the jury rejected the contention, which had been advanced by the Crown, that the appellants had been acting in concert. They were convicted on the basis that each of them, by reason of the assault which he individually carried out, was guilty of the murder of the deceased.
[3] Against that background, a number of questions have been raised in these appeals. One is whether it was open to the jury to convict the appellants on the basis of their individual responsibility, the Crown having sought their conviction on the basis of concert. It is argued that, in doing so, the jury trespassed upon the jurisdiction of the Crown as "master of the instance". A second question is whether, in convicting the appellants on that basis, the jury in any event compromised the fairness of the trial. A third question is whether the trial judge's directions, so far as relating to causation, were adequate to enable the jury properly to arrive at the verdicts which they returned. A fourth question is whether, on the evidence relating to the cause of death, the jury's verdicts were such as no reasonable jury, properly directed, could have returned. A fifth question is whether the jury should have been directed that it was open to them to convict the appellants of attempted murder and, if so, whether the failure of the trial judge to give such a direction has resulted in a miscarriage of justice.
The Procedural History of the Appeals
[4] Before addressing these questions, however, it is appropriate to consider the procedural history of the appeals. The appellants were convicted and sentenced in December 2005. Their appeals were not heard until January 2009. Delays of a similar order have been noted in other recent decisions of this court, such as McCarthy v HM Advocate 2008 SCCR 902 and DS v HM Advocate 2008 SCCR 929. The reasons for the delay merit examination.
[5] Following conviction and sentence, grounds of appeal were lodged on behalf of the second appellant in April 2006. The first appellant eventually lodged grounds of appeal in September 2006, nine months after his conviction. In January 2007 each appellant was refused leave to appeal at first sift under section 107 of the Criminal Procedure (Scotland) Act 1995. In February 2007 leave to appeal was granted to each appellant at second sift. During the same month the Crown made an application to the court under section 94 of the 1995 Act for the transcription of the evidence given at the trial by a forensic pathologist, Professor Harrison. The application was granted. A procedural hearing was then arranged, in accordance with rule 15.5A of the Act of Adjournal (Criminal Procedure Rules) 1996. It was to be held on 11 April 2007. In advance of the hearing a Form 15.5A-B was lodged on behalf of each appellant, stating that the appeal was not ready to proceed to a hearing as the transcript of the evidence given by Professor Harrison had not yet been received. The case was then removed from the roll.
[6] A procedural hearing was next fixed for 24 May 2007. In advance of that hearing, a Form 15.5A-B was lodged on behalf of the second appellant in which it was said that the appeal was ready to proceed to a full hearing. A minute was then prepared and signed by a Depute Clerk of Justiciary, recording that the court had withdrawn the second appellant's appeal from the Procedural Hearings Roll and had directed
"that a diet be assigned [for the hearing of the appeal] during the Appeal Court Sitting commencing on the 9th July 2007 on any suitable date after consultation with the Appeals Manager".
Notwithstanding that minute, the appeal was not heard, as we have explained, until January 2009. The reasons for the delay relate entirely to the progress (or, rather, lack of progress) of the first appellant's appeal.
[7] The form lodged on behalf of the first appellant in advance of the procedural hearing fixed for 24 May 2007 stated that the appeal was not ready to proceed to a hearing, as the defence was investigating additional evidence that had come to light since the conclusion of the trial, and the transcript of Professor Harrison's evidence had not yet been received. It was said that eight weeks would be required to carry out the necessary work. We observe, in relation to the first of these points, that none of the grounds of appeal concerned fresh evidence. The investigation of additional evidence would not appear to have had any relevance to the appeal, the scope of which was defined by the grounds of appeal for which leave had been granted. In the light of the form, however, the case was removed from the roll.
[8] A procedural hearing of the first appellant's appeal was next fixed for 25 July 2007. In advance of the hearing, a form was lodged which was in identical terms to the form that had been lodged in May. Again, nothing was said to indicate the nature of the additional evidence being investigated or its relevance, if any, to the appeal; nor was there any explanation of the failure to complete the investigation within the eight week period which, in May, had been said to be required. It was again said that a further eight weeks would be required. In the light of the form, the case was again removed from the roll.
[9] A procedural hearing of the first appellant's appeal was next fixed for 19 September 2007. The form lodged in advance of the hearing again stated that the defence was investigating additional evidence that had come to light since the trial. Again, no information was given as to what it was, what relevance it might have to the appeal, or why the investigation had not been completed within the time already allowed. The form added that transcripts of the pathology evidence had now been made available, but that "an application to request that additional parts of the evidence be transcribed is being considered by counsel". It was not explained what the evidence in question was, what relevance it might have to the grounds of appeal, or why this matter was only then being considered for the first time. The form also stated that the Crown had been asked "to confirm that full disclosure has been made" and that no response had yet been received. It was not explained what relevance "full disclosure", whatever that might mean, had to the grounds of appeal (none of which concerned disclosure), or why the matter was only then being raised for the first time. It was said that a further eight weeks would be required. In the light of the form, the case was again removed from the roll.
[10] A procedural hearing was next fixed for 25 October 2007. The form lodged in advance of the hearing repeated that additional evidence was being investigated, without any indication of what it might be or what bearing it might have on the grounds of appeal. The "disclosure" point was again made, without any specification of what it might relate to or how it might bear on the grounds of appeal. Another period of eight weeks was said to be required. In the light of the form, the case was again removed from the roll.
[11] A procedural hearing was next fixed for 14 December 2007. By then, two years had passed since the appellants were convicted and sentenced. The form lodged in advance of the hearing repeated, yet again, that the defence was investigating additional evidence and that the Crown had been asked to confirm that "full disclosure" had been made. The form also stated that "an application for further transcripts will be lodged on behalf of the appellant in early course": this was the matter which, according to the form lodged in September, counsel had then been considering. It was also said that counsel would require to consult with the first appellant. A further six weeks were said to be required. On this occasion, for the first time, the procedural hearing went ahead before a judge: presumably the Crown had objected to the case being removed from the roll. The minute records that, "in respect that it was stated there was to be a further application for transcripts and consideration was being given to the lodging of an additional ground of appeal", the court directed that a further procedural hearing be assigned in February 2008, "this being a final continuation". The court also directed that the next (and supposedly final) procedural hearing should be "assigned along with co-appellant".
[12] On 19 December 2007 an application under section 94 of the 1995 Act was lodged on behalf of the first appellant, seeking...
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