Steven Black+alastair Sneddon V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Carloway,Lord Abernethy |
| Neutral Citation | [2006] HCJAC 11 |
| Court | High Court of Justiciary |
| Date | 02 February 2006 |
| Docket Number | XC733/03 |
| Published date | 08 February 2006 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Abernethy Lord Carloway | [2006] HCJAC 11 Appeal Nos: XC733/03 XC747/03 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTES OF APPEAL AGAINST CONVICTION by STEVEN BLACK and ALISTAIR SNEDDON Appellants against HER MAJESTY'S ADVOCATE Respondent _______ |
2 February 2006
[1] This is the Opinion of the Court to which each of its members has contributed substantially.
The Charges
[2] On 16 May 2003, after a trial at the High Court in Glasgow, the second appellant was convicted by a majority verdict of a charge which libelled that:
"(2) on [Wednesday] 1 January 2003 at Kenilburn Avenue, Holehills, Airdrie, you...did assault Steven Charles Walker...repeatedly punch and kick him on the head and body, knock him to the ground, repeatedly strike him on the head and body with a bottle, and throw bottles at him".
The first appellant's brother, Martin Black, was also convicted of that charge. Both appellants were unanimously convicted of charges which libelled, inter alia, that on the same date outside 28 Lilybank Avenue, Holehills, Airdrie, whilst acting along with others, they did:
"(5) ... conduct [themselves] in a disorderly manner, strike and break the windscreens of two cars ... and scratch and dent the bodywork of said vehicles, throw bottles at said house and thereby break a window and glass door panels there, place the occupants in a state of fear and alarm for their safety and commit a breach of the peace ...;
(6) ... assault Steven Charles Walker ... repeatedly punch him on the head and body, throw bottles at him and strike him repeatedly on the body with a knife or similar instrument, all to his severe injury and to the danger of his life ...;
(7) ... assault John Berry Paterson ... seize hold of him, strike him repeatedly on the head and body with a baseball bat and strike him repeatedly on the body with a knife or similar instrument, all to his severe injury, permanent impairment and to the danger of his life ...".
Martin Black was also convicted of these charges, as was one Brian McPherson.
The First Incident
[3] The second appellant does not appeal against his conviction on charge (2). However, the events with which that charge was concerned set the background to the subsequent attack on the house at 28 Lilybank Avenue. That house was occupied by Mary Paterson (aged 42), the ex-wife of John (known as Jake) Paterson (44), who is the complainer in charge (7). Mrs Paterson's brother is Steven Walker (33), the complainer in charges (2) and (6). Her sons include John Paterson junior (23) and Steven Paterson (16). All of these persons gave evidence at the trial, as did one Lee Pearson (22), a friend of John Paterson junior. They were all celebrating New Year in the house. In the early hours of the morning, Jake Paterson, Steven Walker, John Paterson junior and Lee Pearson all went out first footing. As they were returning to the house along a neighbouring street (Kenilburn Avenue) at about 4.25 a.m., they met a group of youths, including Martin Black and the second appellant. For reasons which are not fully explained, Martin Black attacked Steven Walker in the manner libelled in charge (2). The second appellant joined in that assault. Mr Black also assaulted Jake Paterson by hitting him hard on the head with a bottle. He was convicted of that assault and of a further assault in the course of the first incident. Steven Paterson had, at some point during the incident, arrived from the house with a pickaxe shaft. After the attack broke off, the Paterson group returned to the house. The pickaxe shaft was not brought back.
The Second Incident
[4] Albeit that not all of his narrative is accepted by the appellants, the trial judge summarises what then occurred as follows:
"About an hour after the first incident, the second incident began. In Mary Paterson's words, "All hell broke loose". Several full bottles of beer came crashing through the livingroom windows. The glass panels of the front door were smashed. It was later found that the windscreens of two cars parked just outside the house at the front had been smashed and their bodywork had been scratched and dented. The occupants of the house were seriously alarmed by all of this. Matters became worse when an attempt was made to force entry to the house through the front door, which was held shut by Mary ... Paterson. There was no telling what might come through the windows next, or what might happen if entry was forced and the attackers entered the house. While, with hindsight, it was an unwise move, Steven Walker and [Jake] Paterson decided to leave the house in order to see off the attackers. Neither of them was armed. By contrast, the attackers were armed and well organised. While there were more than four of them, those who were identified were Martin Black, [the first appellant] (who was not present at the first incident and whom Martin Black must have asked to join the group), Brian McPherson and [the second appellant], who was wearing a mask but was identified by his clothing. All of them were armed with cudgels of one kind or another. While, in the nature of things, the evidence was somewhat fragmentary, it appeared that all four accused were armed with wooden cudgels, i.e. the pickaxe shaft which Steven Paterson had [in the first incident]...and baseball bats (which may have been intended more for ornament than for sport, but were nevertheless substantial pieces of wood). In addition Martin Black had a knife, although this was not apparent at first. Steven Walker and [Jake] Paterson sallied forth between the two cars and then went in different directions. This gave the attackers the opportunity to form themselves into two sub-groups, each of which attacked one of the complainers. These assaults were the subject matter of charges 6 and 7. Martin Black took the opportunity during each of these assaults to stab each of the complainers repeatedly with the knife which he had. [Jake] Paterson was struck on the left side of his head with a cudgel, in the same place as he had been struck with the bottle during the first incident. Towards the end of the second incident Brian McPherson threw a bag of bottles at [Steven] Walker. The second incident concluded very quickly after Steven Walker and [Jake] Paterson had left the house, and they were helped back into it by some of the other occupants who had come to the door and had witnessed all or part of the assaults."
The trial judge observes that the verdicts of the jury meant that all four members of the attacking group had been acting in concert in respect of everything that was libelled in the second incident.
The first appellant
(a) General
[5] The first appellant's contentions consisted of a restricted form of his grounds of appeal. First, there was insufficient evidence to entitle the jury to infer that the first appellant was a party to any common criminal purpose, other than an assault on Jake Paterson with a bat (or stick). Put another way, although there was enough evidence to convict the first appellant of part of charge (7), there was insufficient proof of his involvement in the breach of the peace (the general attack on the house in charge (5)) or in the use of a knife on either charge (6) or (7). Secondly, there was insufficient evidence that the scope of any common criminal purpose extended to the use of a knife. Thirdly, in relation to that scope, even if there had been sufficient evidence on these aspects, the directions to the jury had been inadequate especially in relation to the use of a knife.
(b) Sufficiency of evidence
(i) THE EVIDENCE
[6] Because of the nature of the first and second contentions, it is necessary to examine the evidence of the involvement of the various protagonists involved in charges (5) to (7) in some detail. As background to that, it should first be noted that number 28 is a terraced or semi-detached house. At the front on the ground floor is the main door and the livingroom window. In front of the door and window is a small area of ground, surfaced with tarmacadam and enclosed by a wooden fence and gate. Occupying almost all of that area were the two cars, parked facing out towards the street. Beyond the fence were the pavement and the roadway.
[7] The first relevant witness is again Mr Walker. After the bottles came through the livingroom window, he went outside and encountered two boys, both inside the fence, one between the cars and the other beyond them (Transcript pp 51-52). He "went out to grab somebody". He was aware of Jake Paterson coming out behind him (p 57). Mr Walker seized hold of someone (not one of the two boys), who was on the other side of the fence. He attempted to pull him over the fence and into the garden (p 54). They were scuffling over the fence. He had his head down and four or five other persons were punching into his back (pp 55-56). Mr Walker twisted his knee and fell down, eventually finding himself on the roadway, where he was kicked. He was helped up by Steven Paterson (p 57). He had not seen anyone with any form of weapon (pp 58, 72) and was unable to identify any of the attackers (pp 59, 72) apart from Mr McPherson, who had been the last to leave and had thrown a bottle as a parting shot (p 60). It was only once he had returned to the house that he realised that he had been stabbed (pp 61-62). Indeed, he had been stabbed several times to the back, one blow causing a pneumothorax.
[8] Jake Paterson could recall nothing about the second incident other than that he had gone out of the house to see who was in the attacking group (p 182). His next memory was of waking up in hospital. Mr Paterson was also...
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