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The woman contended that the trial judge had failed to give adequate direction on the effect of intoxication on her intent, and also sought leave to appeal on the basis of the trial judge’s directions to the jury on accomplice evidence and on joint enterprise. Rejecting all grounds, the Court of Appeal agreed with the trial judge’s discretion in relation to all.

Background

In February 2012, Ms Lindsay White was convicted at Newry Crown Court for the murder of a homeless man, Mr Marek Muszynski, in 2009.

She was in the company of Mr Adrian Cunningham and Mark McAleavey when they came across Marek Muszynski, and the Court heard that Ms White allegedly instigated a confrontation.

At Ms White’s trial Cunningham gave evidence for the prosecution, having already pleaded guilty to murder.

Cunningham claimed that although the plan was conceived by Ms White for largely unknown motives, and commenced by her single punch, he was the main perpetrator, and he accepted that he aimed punches and then kicks and stamps to the deceased’s body and head. The court heard that Ms White at one stage stood on the deceased’s throat bearing her full weight down on his neck.

McAleavey wanting to have nothing to do with the assault, had already left the scene.

In the aftermath Ms White and Cunningham discussed a distortion of the scene, with Cunningham taking off a shoe and pulling down the jeans, which he explained as an attempt to disguise the nature of the attack.

Cunningham said Ms White went through the deceased’s pockets to take a sum of 70 pence, which was all that he possessed.

Mr. Muszynski’s body was discovered by a man who was out walking. He had suffered extensive head, neck and upper body injuries which had resulted in his death. The pathologist concluded that Mr. Muszynski had been subjected to numerous kicks and stamps whilst lying on the ground, and at some stage his body had been dragged along the rough path.

Court of Appeal

Ms White appealed on the ground that the trial judge had failed to give adequate direction on the effect of intoxication on her intent.

Ms White also sought leave to appeal on the grounds that the trial judge;

Intoxication

The Court explained that whether a person has formed specific intent for murder can be affected by the voluntary consumption of alcohol.

The principle stressed in R v Sheehan and Moore 1 WLR 739 was that the trial judge should firstly warn the jury that “…a drunken intent was nevertheless an intent”.

Ms White contended that the trial judge gave no specific direction inviting the jury to take into account the consumption of alcohol as part of their consideration of her intent.

The Court explained that the test established by A-G for N. Ireland v. Gallagher AC 349 was that the intoxication must have been of such a degree that it prevented Ms White from foreseeing, or knowing, what she would have foreseen, or known, had she been sober.

The Court stated that the issue for the jury was the actual intent, but warned that there was a relatively significant threshold which must be crossed before the trial judge was obliged to give the intoxication direction – in this regard, Ms White did not provide support for such a direction, and Cunningham’s account did not support any case that she did not have the requisite intent.

Dismissing this ground of appeal, the Court concluded that such a direction was not required.

Direction when considering accomplice evidence

Ms White claimed that the trial judge had not given the jury an adequate warning about the caution they should exercise when considering the evidence of Cunningham, an accomplice.

Explaining the principles set out in R v Makanjoula 1 WLR 1348, the Court stressed that an appellate Court should be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of the witness’s evidence. In this case, both the prosecution and defence agreed that a Makanjoula warning was required.

Refusing to grant leave on this issue, the Court considered that the warnings given by the trial judge in respect of Cunningham’s evidence encouraged the jury to treat it with particular care, and held that this was not outside the range of discretionary judgment available to the trial judge.

Joint Enterprise

The Court of Appeal held that the guidance given by the judge corresponded with the applicable law at the time of the trial, but noted the decision of the Supreme Court in R v Jogee UKSC 8.

In Jogee, the Supreme Court indicated that where a conviction had been arrived at by faithfully applying the law as it stood at the time it could be set aside only by seeking exceptional leave to appeal out of time. Such leave would only be granted if substantial injustice could be demonstrated.

Refusing leave to appeal on this issue, the Court of Appeal held there was nothing about this case which would satisfy the test of substantial injustice.