Andrew Parfinowski V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Drummond Young,Lady Paton |
| Neutral Citation | [2013] HCJAC 123 |
| Year | 2013 |
| Docket Number | XC717/12 |
| Date | 17 October 2013 |
| Court | High Court of Justiciary |
| Published date | 19 November 2013 |
| 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 The libel against the fourth accused (Lumsden) was withdrawn during the course of the trial.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...
To continue reading
Request your trial
-
Green v HM Advocate
...HCJAC 85; 2017 JC 71; 2016 SCCR 548; 2016 SCL 977; 2016 GWD 31–546 Nisbet v HM Advocate 1979 SLT (Notes) 5 Parfinowski v HM Advocate [2013] HCJAC 123; 2014 SCCR 30; 2014 SCL 29; 2013 GWD 38–731 Porter v Magill [2001] UKHL 67; [2002] 2 AC 357; [2002] 2 WLR 37; [2002] 1 All ER 465; [2002] HRL......
-
Asif Rehman+adel Ishaq V. Her Majesty's Advocate
...three or four times on the head, whilst he was on the ground, did not necessarily entail such recklessness (Parfinowski v HM Advocate [2013] HCJAC 123). REHMAN GROUND 4 -STANDARD OF PROOF [35] The trial judge had failed to direct the jury that they had to be satisfied beyond reasonable doub......