Co-accused in murder trial loses conviction appeal based on jury’s initial return of incompetent verdict
A woman co-accused of murder and given a life sentence with a 16-year punishment part on her conviction has lost her appeals against conviction and sentence after the High Court of Justiciary rejected an argument that an earlier jury verdict found to be incompetent ought to have resulted in her acquittal.
Appellant Stacey Balfour, aged 24 when sentenced, was convicted along with her co-accused Cameron Woods of the murder of Robert Fisher, and accepted that the judge was correct to direct the jury on concert in line with the full bench decision in Gardiner v HM Advocate (2024). However, she argued that the judge erred in directing the jury to reconsider an earlier incompetent verdict that she was guilty of culpable homicide, which ought to have been recorded as a verdict of acquittal due to her co-accused having been originally convicted of murder. The appeal was heard by Lord Justice Clerk Beckett, Lady Wise, and Lady Carmichael, with Ross KC and J Brannigan, advocate, appearing for the appellant and E Campbell, advocate depute, for the Crown. Common criminal purpose The facts of the case were established in two joint minutes of agreement, with the jury also hearing from fourteen witnesses. On 23 July 2023, the co-accused were drinking alcohol together with the deceased, his sister Leona Fisher, and another man, Mr McDowell. The atmosphere in the group was fractious and after an argument between the deceased and Mr Woods they left Ms Fisher’s flat. At 7:47am the next day paramedics attended in the area and found Mr Fisher with penetrating stab wounds to his chest. He was taken to hospital, where he died at 12:44pm. Earlier that evening, the appellant had produced a pink “fake key” which concealed a small knife. Forensic evidence was led of a drip trial of the deceased’s blood in the stairwell of the flats where Ms Fisher lived and blood stains on a small pink locking knife from the deceased and Mr Woods. The appellant’s clothing bore blood from the deceased and permitted the inference that she had been close to him while he was bleeding. The Crown invited the jury to find that she was involved in the attack and had knowledge of the knife used to inflict the fatal blow. She had also lied the police by attempting to blame Mr McDowel for attacking the deceased and claiming to have no recollection of what had occurred or how the knife came to be in Mr Woods’ possession. In their initial verdict, the jury unanimously found Mr Woods guilty of murder and found by majority that the appellant was guilty of culpable homicide. The judge and parties agreed this verdict was incompetent as it was not open to them, per Gardiner, to return differentiated homicide verdicts where the Crown case was based on concert. It was decided that the appropriate course was to explain to the jury why their verdict was incompetent, give further directions on concert, and invite them to consider their verdict in respect of both accused. The result of this was that the appellant was found guilty of murder. For the appellant it was submitted that the judge ought to have directed the jury to confine their further deliberations to whether their verdict in respect of the appellant was one of not guilty or not proven, since their initial verdict signalled a clear rejection of the Crown’s case that she was guilty art and part of murder. Further, the judge’s response to jury questions, in which she repeated nearly verbatim her earlier directions on concert, had served to further confuse them and led to a miscarriage of justice. The Crown submitted that the earlier verdict indicated that the jury were satisfied that the appellant had acted in pursuance of a common criminal purpose which involved the use of a weapon and had a foreseeable consequence of death or serious injury. There was an obvious intention to convict, and the judge’s approach was supported by appellate guidance. Properly considered murderous Lord Beckett, delivering the opinion of the court, noted the importance of the forensic evidence in the trial, saying: “The findings were consistent with the appellant participating in an assault on Mr Fisher that the jury properly considered murderous. They were supported by the evidence of Ms Fisher, the CCTV footage and the other circumstantial evidence. The sheer number of blows aimed at Mr Woods with a conspicuously visible knife (as the appellant put it in the recorded phone call ‘obviously it’s a bright pink knife’) belonging to the appellant, alongside the whole evidence, made the jury’s conclusion that she participated in the assault with the requisite knowledge almost inevitable.” He continued: “The additional directions given, whilst substantially repeating what had gone before, were correct in law and provided the key answer to the second and third questions: to be convicted the appellant must have participated in the assault knowing that her co-accused was using a knife. It was when the judge stripped out extraneous examples of concert and gave the core of her directions on concert that the jury reached a verdict that was properly open to them on the evidence following their rejection of the appellant’s account. We are not persuaded that the judge erred in responding to the questions as she did and we reject this ground of appeal.” Considering that the judge was fair to both accused by declining to accept both initial verdicts, Lord Beckett said: “Proceeding in that way was the only way in which the jury could have returned a competent verdict of culpable homicide for the appellant if that was what they really wished to do. Had the judge recorded the jury’s verdict against Mr Woods, then the option of the appellant being guilty of culpable homicide was lost. The only options would have been guilty of murder or acquittal, and the jury did not acquit the appellant. Their verdict of guilty of culpable homicide could not be treated as if it was an acquittal. It seems clear that the jury considered the appellant to bear joint criminal responsibility for Mr Wood’s murderous assault.” He concluded by disposing of the appeal against sentence: “The sentence imposed on Mr Woods was appropriate. He was the principal actor and in control of how much violence he used. The appellant was guilty art and part, and her punishment part was lower. Allowing for her status as a first offender, her difficult background, that she fell within the ambit of the Sentencing Young People guideline (towards the upper end of its scope) and the importance of her being a parent of a young child, we are not persuaded that a punishment part of 16 years for her significant role in this vicious murder, committed with her knife, and for which she showed no remorse, was excessive.” The appeals against conviction and sentence were therefore refused.
