Paul Green, Lee Noonan and Robbie Darren Brown v. Her Majesty’s Advocate [2019] HCJAC 76

Notes of appeal against conviction and sentence:- On 7 December 2018, at Glasgow High Court, the appellants were convicted of various offences including a charge of murder. On 29 January 2019, following the obtaining of Criminal Justice Social Work Reports, the trial judge imposed sentences of detention/imprisonment for life on each appellant, with punishment parts selected of 18 years for the first appellant, 21 years for the second appellant and 18 years and 5 months for the third appellant. The appellants appealed against their conviction and sentence. On behalf of the first appellant it was contended that the nature, extent and tone of the trial judge’s interruptions of the first appellant’s evidence had led to a miscarriage of justice. It was submitted that during the course of the appellant’s evidence it was clear the trial judge’s repeated interventions had an impact on the first appellant a point illustrated by the fact that he almost fainted on being asked by the trial judge about the route which he said he had taken after the incident. It was submitted that a judge should wait until the end of an examination prior to asking questions limited to clarifying any points raised. It was submitted that a number of the interruptions amounted to challenges to his evidence and the trial judge ought to have taken more care in questioning an accused whose evidence is of a different nature to other witnesses. It was further submitted on behalf of the first appellant that a fair minded and informed observer might conclude from the nature of the questioning by the trial judge that there was a real possibility of him being biased. It was further contended on behalf of the first appellant that the trial judge had misdirected the jury that if they failed to find concert established to the requisite standard they were bound to acquit the first appellant. In particular, it was submitted that in light of the cross incriminations by the accused it was necessary for full and clear directions to be given and the judge had failed to direct the jury on antecedent concert in murder. On behalf of the second appellant it was submitted that the trial judge’s directions on concert were inadequate it being necessary for clear directions to be given in relation to what was required in order to constitute a concerted antecedent plan to commit murder. It was further contended on behalf of the second appellant that the trial judge had misdirected the jury on the question of culpable homicide and failed to give the jury directions on how culpable homicide may be available to them in relation to the second appellant’s version of events. On behalf of the third appellant it was submitted that the trial judge’s directions on concert were inadequate and were of such materiality that a miscarriage of justice had occurred. On behalf of the Crown it was submitted that the test to be applied in relation to judicial interventions was whether the circumstances were such as would create in the mind of a reasonable man a suspicion that the judge was not impartial and in the present case, no issue had been raised regarding interruptions by the judge of the first appellant’s evidence until towards the end of his evidence, and no miscarriage of justice had occurred. In relation to the criticisms of the trial judge’s directions to the jury on concert it was submitted they were sufficient. It was submitted that if the jury were satisfied the appellants were acting in concert, in light of the circumstances of the case, then there was no other appropriate alternative to murder available. Here the court refused the appeals against conviction. In relation to the issue of judicial intervention the court examined the applicable law and considered that the interruptions did not reach the level necessary to say that a miscarriage of justice had occurred. The court considered that there had been relatively few interruptions, the judge did not take over the role of the examiner and the questions asked of the first appellant did not give the impression of an adverse view of the first appellant’s credibility or reliability being formed. In relation to the contention that the trial judge’s directions on concert were inadequate the court observed that the clear evidence in the case was that the three appellants had participated in a discussion before heading to the deceased’s home all either armed with weapons or aware of the presence of others carrying weapons. The court noted that the directions given were largely taken from the Jury Manual, albeit the specific directions on antecedent concert in murder cases was not given. The absence of such a direction was a misdirection, however, the court went on to consider that it did not amount to a miscarriage of justice in light of the uncontradicted evidence that there was a common criminal purpose involving the appellants going to violently confront the deceased with each appellant either carrying a lethal weapon or aware of the others involved doing so. The court considered that the general directions on culpable homicide were not tailored to the particular circumstances of the case, however, the court did not consider that any such misdirection was material. In relation to the appellants’ appeals against sentence, the court refused the appeal against sentence in relation to the first appellant who was aged 30 at the time of the offence in what the court described as “a pre-planned and brutal assault on the deceased”. In relation to the second and third appellants the court considered that the punishment parts were excessive having regard to their relative youth at the time of the offence (20 and 18 respectively) and their relative lack of maturity. The court noted that whilst in Kinlan v HMA [2019] HCJAC 47 and Campbell v HMA 2019 SLT 1127 the appellants were under 18 at the time of the offences the age of the second and third appellants in the present case was a material factor in the sentencing exercise, particularly in light of the age of the first appellant. The court quashed the punishment parts imposed and substituted punishment parts of 18 years for the second appellant and 16 years for the third appellant.