Rachel Trelfa or Fee v. Her Majesty’s Advocate [2017] HCJAC 13

Note of appeal against conviction:- On 31 May 2016, at Livingston High Court, the appellant, and her co-accused Nyomi Fee, was convicted after trial of various charges relating to her three children including a charge of assaulting Liam Fee (charge 6) and the murder of Liam Fee (charge 7). The appellant appealed against her conviction on charges 6 and 7 on the grounds of alleged misdirections by the trial judge. It was contended on behalf of the appellant that the trial judge’s directions in relation to concert in relation to charges 6 and 7 were insufficient in that it was necessary for the jury to be given clear directions to enable them to understand what was necessary by way of evidence to enable them to reach the conclusion that the appellant had been acting in concert with her co-accused and that the jury should not be left with the impression that knowledge of assaults by the co-accused would be sufficient to constitute acting in concert. It was submitted that in the directions that were given the impression the jury would have was that they should convict the appellant if they concluded that the deceased’s injuries were caused by the co-accused and that the appellant knew that he was being assaulted by her and concealed his injuries. It was further contended on behalf of the appellant that in relation to charge 7 the trial judge erred in failing to direct the jury that it was open to them to convict the co-accused of murder and to convict the appellant only of culpable homicide. The trial judge had directed the jury that they could find both accused guilty of murder, find both accused guilty of culpable homicide, or could acquit both. They were further directed that they could convict the co-accused of murder and acquit the appellant on charge 7, however, not vice-versa. It was submitted on behalf of the appellant that, whilst the Crown case had been that it could not be said which of the two accused was responsible for the infliction of the individual injuries to the deceased but that they had acted in concert together, there was evidence from a witness JJ to the effect that the co-accused had been responsible for certain of the injuries, including the fatal injury. It was submitted that the direction that the jury could convict the co-accused of murder and acquit the appellant but not vice versa was given on account of JJ’s evidence. It was further submitted that an alternative verdict that the co-accused was the actor in the murder and the extent to which the appellant was acting in concert meant that a verdict of culpable homicide for the appellant ought to have been made available in that scenario. The court refused the appeal. In relation to the ground of appeal relating to the alleged misdirections on concert in relation to both charges 6 and 7 the court considered that the directions given were comprehensive, accurate and helpful. The court noted that the trial judge made it clear that it was necessary for the jury to be satisfied that both accused had entered into a common plan and that each accused would only be responsible for the consequences of conduct within the scope of the common plan that they entered into. Further, it was made clear to the jury that active steps to facilitate the plan were necessary and that mere knowledge of conduct by the other was insufficient to result in criminal responsibility. In relation to the alleged misdirection in relation to the availability of a conviction for culpable homicide the court considered that the directions given were sufficient. The court observed that on the evidence led the Crown clearly established that the appellant had associated herself with a purpose which carried with it the obvious risk that life would be taken. The court considered that the detailed and careful approach by the trial judge as to how the jury should approach the case could not be criticised, indeed court questioned whether the trial judge’s charge was over generous to the appellant and her co-accused in leaving the option of a verdict of culpable homicide open at all.