[2017] HCJAC 75
Lord Justice Clerk
Lord Drummond Young
Lord Turnbull
1st Appellant:  Scott QC, Sol Adv; Shand; Faculty Services Limited (for Burn & McGregor, Aberdeen)
2nd Appellant; Kerrigan QC; Vengoechea; Faculty Services Limited (for George Mathers & Co, Aberdeen
Respondent:  J Keegan QC, Sol Adv; Crown Agent
8 November 2017
[1] Ryan Gibb and Cameron Laurie appeared together on a charge of murdering James Chadwick in Aberdeen on 31 August 2015, at 26e Holland Street, Chadwick’s home address.  Gibb was convicted unanimously, and Laurie by a majority.  In the case of Gibb the conviction was aggravated by a finding that he did previously evince malice and ill will towards Chadwick; and for each of them there was a bail aggravation.  They were both unanimously convicted of a further charge of attempting to defeat the ends of justice.  At trial, each advanced a special defence incriminating the other.  Neither gave evidence.  Both have appealed against conviction.
[2] In his speech to the jury, the Advocate Depute raised the possibility that a verdict of culpable homicide might be returned in respect of the second appellant.  Neither defence counsel made reference to the issue.  In the course of his charge to the jury, the trial judge withdrew the possibility of a verdict of culpable homicide in respect of either accused, saying that the litany of injuries was such that there was no scope for a conviction for culpable homicide.  The trial judge gave the jury directions about concert, and told them that although they could convict the first appellant as actor, they could convict the second appellant only on an art and part basis.  In this appeal it is submitted that (a) the judge erred in removing the option of culpable homicide from the jury’s consideration;  (b) that his directions in respect of concert were inadequate;  (c) for Gibb, that the direction that Laurie could be convicted only on an art and part basis was a misdirection, unfairly undermining Gibb’s defence of incrimination;  (d) for Laurie, that there was a misdirection in relation to the treatment of certain statements made by a witness.

[3] Although the evidence suggested that the assault which ended Chadwick’s life took place on 31 August, his body was not found until 9 September.  He was lying on a sofa, and there were numerous blood stained areas at different parts of the flat.  The deceased had been a friend of Gibb’s mother, Tracey Gibb.  It seems at one time that they had been in a relationship, but had become estranged, possibly because of Chadwick’s infidelity with other men.  In any event, Chadwick became afraid to leave his house, and told witnesses that he was afraid of violence at the hands of the accused Gibb and his friends.  Chadwick was last seen alive, and recorded on cctv, purchasing cider from a corner shop on 29 August.  The cause of death was a subdural haemorrhage resulting from a blow to the head.  In addition, the deceased had sustained a significant number of other injuries, all caused by blunt force trauma.  These are listed by the trial judge and include injuries to the head, neck, chest and abdomen, as well as minor injuries to the arms and legs.  How many blows might have been required to cause these injuries was not explored in evidence to any extent, but clearly many blows would have been required to reflect the number of injuries.  A great deal of time was spent in examination-in-chief in identifying what could be seen on post-mortem photographs, and a mere recitation of the pathologists findings, rather than on an exploration of the pathologist’s interpretation of the nature and extent of the injuries, the kind and number of blows likely to have been required to cause them, or the force which might have been required.  There was no attempt to link external and internal injuries.  Although there were several serious injuries, such as many broken ribs, as a matter of fact the Crown did not lead evidence that any of the other injuries would have been life threatening.  Despite the rib injuries there was no pneumothorax, or haemothorax.  The lungs did not show any bruising of the kind often found with significant blunt trauma.  There was some evidence about the degree of force which might have been required in respect of any of the injuries found, but it was relatively restricted.  For example, the force to cause two lacerations penetrating less than the full thickness of the scalp, was said to have been “relatively forceful”:  this was compared to the effect of falling against a doorpost.  There was no fracture to the skull or face.  There was evidence of bruising on the abdomen, associated with underlying soft tissue bruising, and bruising of the mesentery with surface lacerations indicated “severe blunt force injury to the abdomen”.  Various areas of head injury showed a clear, linear, pattern, and the evidence was that this indicated “more than one impact” with a surface with an interrupted or imprinted profile.  The evidence of the pathologist was that the patterned nature of these injuries were “highly suggestive of them having been caused by footwear in the context of an assault involving kicking and/or stamping.  The bruising to the abdomen showed similar pattern bruising.  This was highly suggestive of stamping and/or kicking to the abdomen.  The incapacity, and death, resulting from the subdural haemorrhage might have taken several hours to develop. 
[4] The Crown led evidence of comparisons carried out between the pattern bruising found at two areas on the left side of the deceased’s head and the shoes of Gibb.  The evidence was that the shoes could have made the marks on the deceased, but that their shape and size was more likely to have been the result of kicking rather than stamping. 
[5] At trial it was accepted that both appellants, and no-one else, were at Chadwick’s house together during the incident in which he met his death.  They had arrived together, and left together.  The evidence against each accused may be summarised briefly as follows:

[6] As noted above, Gibb’s mother had previously been in a relationship with the deceased.  In addition, Gibb had for a time lodged with the deceased at the locus.  In the early hours of 1 September Gibb made a 999 call referring to an assault on “…a guy …” in Holland Street at No 63E.  He said he did not know the victim whose face was “… in a mess …” but he was alert when Gibb left him.  The address, which did not exist, could not be found when an ambulance attended.  (The trial judge described this as “plainly a false story” which resulted in the conviction on one of the heads of the charge of attempting to defeat then ends of justice).  When the address could not be traced, a police controller called back the number which had made the original call, and spoke to a male who appeared under the influence of drink or drugs.  He became irritated and said he did not know the victim, whose “face was smashed in” and in bits, and that he had seen the assault. 
[7] The pattern on two of the injuries on the deceased’s head and body was consistent with the tread on Gibb’s trainers, and having been made by kicking.  Patterns made in blood on the floor in the deceased’s house could also have been made by these shoes. 
[8] Gibb and Laurie were friends, and Laurie’s sister Marion Laurie was Gibb’s partner.  On 8 September she held a party for Gibb’s birthday, at which both appellants were present.  It appears that there was considerable conversation – much of it inadmissible - about what he happened to the deceased (whose body had not yet been discovered).  In a statement to the police Tracey Gibb maintained that in Laurie’s presence Ryan Gibb said “…Cammo [appellant Laurie] used the dog lead on James and kept hitting him with it …”.  Tracey Gibb (mother of the appellant Gibb) also said that both appellants were agitated at the party and that Gibb said to her that “...he was not going to do 10 years…”  for something he did not do. 
[9] Evidence was led from Karen McKenzie, the former partner of Laurie.  As noted below, she gave evidence that Laurie had told her he had no real recollection of what happened, but that Gibb had told him that he, Laurie, had been fighting with the deceased.  She then referred to a telephone conversation she had with Gibb, in which she asked “how bad James [deceased] was after him and Cameron [Laurie] assaulted James in his house, and if James was still speaking when him and Cameron left him in his flat”.  She stated “Ryan told me that James had blood over his head.  I think he meant… and he then told me that he and Cameron then cleaned James’s face up.”  This was in a statement which she made to the police, and which she adopted in her evidence.  In that statement she also said “Ryan said the reason he phoned the ambulance was because James was sounding like he was choking on his blood, and having breathing difficulties.”  At another point she said that Ryan told her that “James was fine when they left James’s flat after assaulting him”.  In her evidence she thought she might not have used the word “assault” in her question and would have been likely to refer instead to “fighting”.  She accepted that she went on to tell the police “As I told you before, Cameron didn’t admit to assaulting James and said he couldn’t remember assaulting James….Gibby, however, did admit to assault James”. 
[10] We were advised by the Advocate Depute that there was evidence that Gibb said the deceased was conscious and able to speak when they left, but had to be lifted from the floor.  The pathology evidence indicated that this was possible.  However there was also evidence from a witness Carlton Cozier that Gibb told him that the deceased was unconscious, unresponsive and twitching, having received “a right beating”. 
[11] The remaining piece of evidence relates to when Gibb was detained in the police cells at Kittybrewster along with several others, including a farmer called Cunningham.  Cunningham spoke to unusual behaviour on the part of Gibb, which was also recorded on cctv.  He is seen pacing up and down in the cell, waving his arms and talking about what had happened to Chadwick.  He was described as “hyper” and animated.  With accompanying actions of striking, lashing and stamping he said Chadwick had been hit with a dog lead and “stomped” on.  He described the dog lead as having studs and the victim “… bursting like a melon …”  Gibb said he was “… out of his skull at the time …”.  He mentioned a “… love triangle …” and the victim “… swinging the other way …”  He made mention of a towel and the clearing up of bloody footprints on the bathroom floor.  In his report the trial judge stated that Cunningham also said Gibb spoke of “… stamping on his head …” and moving the victim who had a towel round his head.  Laughing and joking, he expressed no remorse.  The clear impression given by the trial judge was that Gibb had been acting out his own part in what had happened to Chadwick.  In fact, all parties were agreed that Cunningham stated that to the contrary the impression he had was that Gibb was acting out what he said another had in fact done to Chadwick, not his own part in it.  Of course, the jury could have concluded, on the evidence, that this impression was mistaken.  Nevertheless, the evidence did not have quite the unequivocal effect which was suggested by the trial judge’s report.

[12] The trial judge, as he observed in his report, thought the case against Laurie to be considerably weaker than that against Gibb.  In the course of submissions in the appeal, the Advocate Depute (who had conducted the trial) agreed with this.  He said that the best evidence of any direct participation by Laurie in an assault on the deceased was in relation to the use of a dog lead.  That evidence came in the form of the statement made by Gibb at the party, as noted above.  This was said in Laurie’s presence and his only reaction to that was to say that “… they should stick to the same story …” and, effectively, that Tracey Gibb should keep quiet.  The Advocate Depute stated that there was no evidence matching any injuries with the use of a dog lead.  Gibb’s reference to Laurie using a dog lead was essentially in a context in which he, Gibb, had done nothing, and that the only assault had been by Laurie with the dog lead.  
[13] A handprint, identified as that of Laurie, was found within blood staining in the bathroom.  DNA consistent with that of Laurie was found on the deceased’s clothes, a mop handle, cups and the bathroom door frame.  Karen McKenzie spoke of a conversation with Laurie in which he said that Gibb had told him they had been in a fight with Chadwick, but that he himself had no memory other than cleaning the deceased, saying that he had tried to help him, clean him up and get a towel for his head or face.  He said that Gibb phoned an ambulance from the house, but it never came.  Karen McKenzie also spoke to telephone conversations with Laurie when he was on remand, in which she told him she thought the police thought he and Gibb planned to kill Chadwick.  Laurie responded “It wasn’t planned, though, it was nowhere near planned.  It was like a spur of the moment we even went to his house”.  [It should be noted that the question asked by Karen McKenzie of Gibb, noted above, does not reflect that Laurie had admitted to her that he had assaulted Chadwick, or that he had remembered this happening, rather it reflects that she knew Laurie had been told this by Gibb.  Her evidence was quite clear that at no time did Laurie admit assaulting the deceased, or say that he had any greater memory of what happened than as recorded above.] 
[14] Marion Laurie had also given statements to the police, apparently adopted in evidence, in one of which Laurie told her that “… he and James had been fighting … “fuck knows, I think I’ve been fighting with James “…”.  
[15] The final piece of evidence relating to Laurie concerned a witness called Scott West.  He was asked about a statement to the police in which he had apparently referred to a conversation with Laurie, in which Laurie said he was “handing himself in…[and]….that he had killed James”.  In the statement West asked whether he had done so, and was told “..Aye, it was me…”.  The trial judge explains that this evidence was given “via his statement”, adding that in cross examination he said Laurie told him he was handing himself in for the “..murder of James.”  It is not clear whether the formulation of what he was “handing himself in” for came from Laurie or West.  The latter seems more likely, given the treatment which this evidence received at trial.  
On the face of it, this is strong evidence against Laurie.  However, the trial judge directed the jury that it was not at all clear to him that West, in evidence, had adopted the contents of his police statement, and, of course, went on to direct the jury that they could only convict Laurie of murder on an art and part basis, not on the basis of any direct actings of his own.  The Advocate Depute also explained that the Crown did not found on the evidence of West’s statement. 
[16] The narration of evidence contained in the reports from the trial judge is sparse.  The evidence of Cozier, for example, was not mentioned; nor is the handprint found in the bathroom.  The court had obtained transcripts of the evidence as suggested by both sides, but these were limited to the evidence of the witness McKenzie and the pathologist.  At a procedural hearing the latter had been identified as necessary to answer several points raised for the appellant.  There was necessarily a degree of exploration during the appeal as to the nature of the evidence which was led and which was relied upon by the Crown.  The above narrative is the distillation of that, and the Advocate Depute did not suggest that there was any other material evidence which required to be taken into account. 

[17] We had the benefit of written submissions from all parties.  We will not repeat these at length.  The main focus in the appeal was on the withdrawal of culpable homicide from the jury; followed by arguments that in a case of this kind, alleging spontaneous concert, and where there are no clear and undisputed facts about the circumstances of the attack, and no weapons it was incumbent upon the trial judge to give directions about the nature and scope of any common criminal purpose, and that it extended to the degree of violence which resulted in death.  The directions seem to have confused the jury into thinking that mere presence might suffice, since they asked a question on that matter.  Counsel also argued the remaining grounds of appeal.
[18] The Crown’s response was that the nature of the attack was such that there was no room for a verdict of culpable homicide.  In these circumstances it was not necessary for the trial judge to direct the jury that they required to be satisfied that the scope of any concert extended to the degree of violence which caused death.  The sustained and violent nature of the attack was such that it obviously encompassed the use of lethal force.  There appeared to be some inconsistencies in the Crown’s presentation which we required to address during submissions.  For example, the Crown’s written case and argument contained reference to the evidence of West:  however in oral submission the Advocate Depute disavowed that evidence, indicating that the Crown had not relied on that evidence at trial.  The position of the Advocate Depute as to whether the evidence indicated kicking or kicking and or stamping was not at first clear:  a great deal of time was spent (the Advocate Depute having told us that he had not read the transcript of the evidence of the pathologist which was clearly identified at the procedural hearing as being of great importance to the appeal) in ascertaining what the evidence had been about this, the result being as noted above.  Finally, the Crown’s position that the trial judge had been correct to withdraw culpable homicide from the jury did not accord with the position taken at trial, where the Crown had indicated that such a verdict would be a possibility in the case of Laurie. 

Analysis and decision
[19] It is beyond doubt that in certain circumstances a trial judge in a case of murder would be entitled to withdraw culpable homicide from the jury, might even have a duty to do so.  It is equally beyond doubt that great circumspection must be exercised in taking such a course, and it would only be justified if it could be said that on the evidence there was no basis upon which such a verdict could be returned.  In Parr v HMA 1991 SLT 208, the Lord Justice General (Hope) observed that:
“There is no doubt that there are limits to what a judge may properly do, since questions as to weight and quality of the evidence are not for him.  But if there is no basis at all for the point in the evidence then there is no ground in law for the jury to consider it, and it is the duty of the trial judge to intervene by giving a direction to that effect.”

However, in our view that latter duty can only arise if it does not require the judge to engage in the kind of assessment referred to in the first sentence of that dictum.  The assessment of whether the actions of any particular accused should be characterised as displaying the wicked recklessness required for a conviction of murder is typically one for the jury.  It is only if any evidence which might bear on that question would be incapable of being given weight by any reasonable jury properly directed that the judge would be justified in withholding the option of culpable homicide.  In a case where there is no intent to kill, no antecedent plan, no weapons (apart from the dog lead, in this case), where there is uncertainty as to the circumstances of the attack and where there is no clear picture of the respective part played by each of two accused, the factual conclusions which might lead to the determination of the appropriate verdict, as between murder and culpable homicide, are very much issues which fall into the territory of the jury.  In such cases it is a question of fact and degree whether the actions should be classed as murder. 
[20] In Brown v HM Advocate 1993 SCCR 383 the Lord Justice General (Hope) said (p391):
“The alternative verdict of culpable homicide is one which should be withdrawn from the jury only with great caution, because the onus is on the Crown to prove its case and all questions as to the weight or quality of the evidence are for the jury and not for the trial judge.  The correct approach to the questions raised by the direction as to what constitutes murder should normally be to leave it to the jury to decide whether the necessary degree of wicked recklessness has been established by the Crown.  Nevertheless there may be cases where the number or nature of the blows struck or the weapons used are of such a character that there is no room for a verdict of culpable homicide, in the absence of any other basis for that verdict in the evidence.”

Of course it would have been open to the jury to convict of murder.  The case was stronger against Gibb.  The post-incident actings and telephone calls were rightly relied upon by the Crown as strengthening their case; but they were open to more than one interpretation.  As to Laurie, at trial, the Crown’s position was that a verdict of culpable homicide was a realistic possibility.  The jury might even have chosen to discriminate between the two. 
[21] This is not a case in which picture was so clear cut – as regards either accused – that culpable homicide should have been withdrawn from the jury.  We consider that in doing so the trial judge misdirected the jury, and that the misdirection was a material one which has resulted in a miscarriage of justice.  On that basis we will allow the appeal.  That being so, we do not require to address the remaining grounds of appeal.