Allan Michael Carey v. Her Majesty’s Advocate [2016] HCJAC 10

Note of appeal against conviction:- On 19 November 2014, at Glasgow High Court, the appellant was convicted after trial of a charge of culpable homicide. The appellant’s co-accused, Sean McCulloch, was convicted of a charge of murder and a co-accused, Fergal Morgan, had the charge of murder withdrawn against him. On 11 December 2014 the appellant was sentenced to 3 years detention. The appellant appealed against his conviction and argument was advanced in relation to three grounds:- (1) whether text messages, which contained partly erroneous admissions, were corroborated by other facts and circumstances and thus provided a sufficiency of evidence; (2) whether, even if there were a sufficiency, no reasonable jury could have convicted on the basis of that evidence; and (3) whether the trial judge erred in his directions to the jury about what was capable of amounting to corroboration of the texts. The text messages sent by the appellant were:- (a) “We ended up stabbing Sam and smashing f..k out o’ wee Ross. Don’t say anything at all, but madness. Ha, ha.” and (b) “Me and Stu [McCulloch] done in Sam J last night. I stabbed him twice”. The Crown case against the appellant was based on his art and part responsibility with the principal actor McCulloch who was responsible the fatal stab wound. It was submitted on behalf of the appellant that the trial judge had erred in holding that the evidence was sufficient in that the purported admissions by the appellant in the texts were inaccurate as a matter of fact and there was no further evidence available to the Crown which could corroborate them. For the appellant to be responsible on an art and part basis the Crown required to lead corroborated evidence that, when the fatal blow was delivered, there was a common purpose involving McCulloch and the appellant and no such evidence was led. It was further submitted that even if there had been a sufficiency of evidence, the verdict was one which no reasonable jury could have returned in that the erroneous ‘admission’ could not properly be the starting point of the case against the appellant and there was no further evidence available to the Crown to corroborate it. It was further submitted that there was evidence that, at the time of the stabbing, the appellant was not present but outside the flat. It was accepted on behalf of the appellant that the test for such a ground of appeal to be successful was a high one. It was further contended on behalf of the appellant that the trial judge erred in his directions to the jury in relation to corroboration, in particular, that the ‘admission’ was self-corroborating which could not be said to be the case given the criticisms that were made of it. On behalf of the Crown it was conceded that the texts were fundamental in the assessment of the sufficiency of evidence. It was submitted that it was a matter for the jury to accept the first parts of both texts, which were then supported by the circumstantial evidence. Here the court refused the appeal. In relation to the question of whether there was a sufficiency the court considered that there was sufficient evidence against the appellant for the charge to go to the jury. The court viewed the texts as an admission that the appellant had stabbed the deceased and that there was ample circumstantial evidence to corroborate his admission as the actor. The court observed that the law currently allows for of an illogical situation where a person can be art and part guilty of culpable homicide when the victim is found to have been murdered and it may be that Parliament requires to review the current law. In relation to the present case the court’s view was that there was sufficient evidence that the appellant was aware of the potential use of lethal force in that by text he admitted taking part with McCulloch in a lethal attack on the deceased and that despite the fact that he did not in fact stab the deceased the court considered that that did not matter and was for the jury to consider what to make of it. The court’s view was that the real issue was that the texts provided a clear basis for the jury to establish art and part guilt. In relation to the reasonableness of the jury’s verdict the court stated that the appellant was entitled to draw the court’s attention to the trial judge’s expression of surprise at the verdict, however, the judge did not regard it as an unreasonable one and in light of the clear admission of involvement in the fatal assault an appeal on this ground could not be sustained. In relation to the alleged misdirection it was not necessary for the admission to be special or self-corroborating in the present case given the other circumstances available to corroborate the admission. The court noted that the trial judge had specifically directed the jury that the contents of the texts sent by the appellant would not be enough on their own if the jury considered them to be admissions.