(1) Gary William Sim; (2) James Edward Watson; and (3) Paul John Watson v. Her Majesty’s Advocate [2016] HCJAC 48

Note of appeal against conviction and sentence:- On 24 July 2015, at Edinburgh High Court, the appellants were convicted after trial of a charge of murder. All three appellants were sentenced to life imprisonment with punishment parts of 20 years selected. The appellants appealed against their convictions on a number of grounds, in particular, criticisms of the trial judge’s charge in relation to concert. On behalf of the first appellant it was submitted that the directions given by the trial judge in relation to concert had been inadequate in that mere presence at the scene of a crime was not sufficient to establish art and part guilt and the actings of the appellant in assaulting the deceased in the pub were not sufficient to establish guilt. It was submitted that a direction by the trial judge for the jury to consider whether the appellant had been “near him [the deceased] or around him” which could give the jury the impression that being near the crime was sufficient for concert. In addition, there was evidence at the trial from NA, the third appellant’s girlfriend, who spoke to the third appellant stating, “Tam and Gary had a square go but [it] went too far and Gary jumped on his head” and that the first appellant had been present at the time and had not reacted. It was submitted that the trial judge’s directions in relation to this piece of evidence were inadequate. On behalf of the second appellant there were criticisms made of the trial judge’s directions to the jury in relation to his special defence of self-defence of another or others in that he directed the jury that reasonable means of escape was necessary in a defence involving the protection of another which was not correct and it was wrong for the trial judge to say that the appellant’s defence was fundamentally flawed and his reference to evidence in support of the defence as being “not wholly clear” and “thin” undermined the quality and quantity of the defence case. It was further submitted that the trial judge was wrong to say that cruel excess barred the plea of self-defence as it was just one of many factors which the jury required to consider. It was further submitted that the special defence ought to have been mentioned by the trial judge and the mixed statement of “I tried to stop it...” ought to have been referred to and one whose whose truth the jury ought to have been directed to consider. On behalf of the third appellant it was submitted that in relation to what was said to NA that amounted to a “mixed” statement and that the judge ought to have directed the jury that the statement one was one whose truth the jury ought to have considered in so far as it exculpated him. Here the court refused the appeal in respect of all three appellants. The court considered that the judge’s charge has to be read as a whole and not scrutinised in isolation and when that was done the directions on concert were adequate and they made clear that if the jury did not find concert established they could only convict on the basis of each appellant’s individual responsibility. The court stated that the trial judge had made it clear to the jury that mere presence alone was not sufficient and, in any event, it was not the Crown position that presence alone was the basis for the conviction as it was the Crown case that each of the three appellants had all participated in the fatal attack. In relation to the criticisms made of the directions given on NA’s evidence about the statement made by the third appellant about the first appellant’s involvement in assaulting the deceased the court considered that they were correct in that the absence of any reaction by the first appellant was incriminatory provided the jury accepted that the statement and his failure to react did in fact occur. In relation to the second appellant’s criticisms of the directions on self-defence the court considered that these criticisms were without merit in that there was no evidence in support of the special defence and the trial judge ought to have removed it from the jury’s consideration and in not doing so it was to the second appellant’s advantage. The court observed that the specific terms of the special defence which referred to the second appellant acting in defence of the first appellant who was being attacked by the deceased and then went on to say that he was acting in defence of the deceased who was being attacked by the first appellant did not make sense in that for there to be self-defence, there requires to be evidence that an accused struck some form of blow against the complainer or deceased, which is reflected in the charge against him and upon which he pleads self-defence. In relation to the third appellant the court considered that the statement was lead by the Crown not so much as a mixed statement against the third appellant but rather as evidence against the first appellant as the statement allegedly made by the third appellant about the first appellant’s involvement did not contain any incriminatory material which would result in it being regarded as “mixed”. The court made some general comments regarding the different roles held by the trial judge and the jury and the judge had made it clear in his directions that it was for the jury to assess the evidence and that in referring to different pieces of evidence the judge had done so to illustrate to the jury how to apply the legal principles and had done so in a reasonably balanced way. The three appellants’ appeals against sentence were also refused having regard to the level of violence used. Whilst the court recognised that the second and third appellants had worse criminal records than the first appellant, the first appellant had started the trouble with the deceased and there was no basis for distinguishing between the punishment parts selected.