Scottish High Court of Justiciary Decisons

JAMES ALEXANDER MACK v. HER MAJESTY'S ADVOCATE [1998] ScotHC 27 (18th December, 1998)

The appellant is James Alexander Mack who was convicted at the High Court at Glasgow of the murder of Edith Landsborough. The charge averred that the murder had taken place between 4 and 8 June 1997 at 39 Berryhill, Cowie. There was a further charge to the effect that the appellant had wrapped the deceased's body in black plastic bags, transported it to a field and abandoned it there within a growing crop of barley and so had attempted to defeat the ends of justice.

In his report to this court the trial judge explains that, despite the latitude in the indictment, the Advocate Depute put the case to the jury on the basis that the appellant had murdered the deceased on the evening of Saturday 7 June or on the morning of Sunday 8 June 1998. It is also plain from that report that the Crown case against the appellant was circumstantial: there was no witness who spoke directly to the accused

having murdered the deceased nor was there any forensic science evidence which directly connected the appellant to the killing of the deceased.

Among the most important aspects of the evidence were a number of adminicles which, when added together, pointed to the deceased having been killed at 39 Berryhill. It is not necessary for us to narrate these since at the trial defence counsel, rightly in our opinion, accepted that the deceased had been killed at that address. There was also evidence of a statement by the appellant to the police in which he said that he resided alone at that address. Although when interviewed by the police, the appellant gave different accounts of his movements on the Saturday evening, in one at least he said that, having been at his grandmother's house, he had returned home at about 11.30 p.m. and remained there till the following morning when he returned to his grandmother's house at about 10.30 a.m. to have breakfast.

The field in which the deceased's body was found is about 350 yards by a country road or track from 39 Berryhill. The body was discovered at about 6 p.m. on Monday, 9 June. The deceased was wearing black pin-stripe trousers and a black top with black boots. The post-mortem was begun at about 2.40 a.m. the following morning. The experts determined that the cause of death had been strangulation. During the post-mortem certain maggots of the greenbottle fly, which is a predominantly outdoor fly, were found on the deceased's body. On the basis of an experiment on these maggots the scientists expressed the opinion that the body must have been placed in the field not later than 2 to 3 p.m. on Sunday, 8 June. There was evidence from Professor Pounder and Dr. Sadler to the effect that the degree of putrefaction of the body indicated that the deceased had been dead for no less than two days. Professor Pounder considered that, while she might have been dead for as much as five days, in general the degree of putrefaction would have developed in three days. Dr. Sadler put the range at between two and four days.

It was on the basis of this scientific evidence that, working back from the post-mortem in the early hours of Tuesday 10 June, the Crown submitted that the deceased had been killed not later than the morning of Sunday 8 June. The deceased had last been seen by her husband in the early evening of Wednesday 4 June. There was evidence from other witnesses of seeing her in the following days. In particular two witnesses spoke to her being in the house at 39 Berryhill later on the Wednesday evening when she quarreled violently with the appellant and thrust a hot knife at the appellant's face. A witness James Symon said that he had seen the deceased twice on Saturday 7 June at 39 Berryhill. The first occasion was between noon and 1 p.m. when she was wearing faded denims and knocked at the door but did not get in. The second occasion was just before 7 p.m. when he said that the appellant opened the door to her. Symon said that the appellant had been stripped to the waist. Symon was not asked, and did not say, whether the deceased went into the house. Symon's niece corroborated his evidence of seeing the deceased, but she did not see the appellant. Symon described the deceased as wearing black trousers, possibly pin-stripes, and a dark top, with a black shiny bag. His niece merely said that she was wearing dark clothes.

The evidence of these witnesses and others who spoke to seeing the deceased before the Saturday evening were consistent with the Crown case that she had been murdered on the Saturday evening or Sunday morning. There was one witness, however, Arthur Hamill, who spoke to having seen the deceased at about 2.40 p.m. on Sunday 8 June. He said that he had had a good view of her while she walked some distance in the vicinity of Berryhill. On the basis of his evidence the defence position in cross-examining the scientific witnesses was to the effect that the deceased might have been alive on the Sunday afternoon.

Although the appellant had several grounds of appeal, including one to the effect that the trial judge had been wrong to refuse a motion of no case to answer, in presenting the appeal Mr. Boag Thomson, Q.C., concentrated on only one ground. In doing so he explicitly accepted that there had been sufficient evidence to entitle the jury to convict the appellant. The appellant did not give evidence at his trial. The submission advanced by counsel was that the trial judge had misdirected the jury as to the inferences of guilt which could be taken from the fact that the appellant had not given evidence.

As part of the background to his contention, counsel drew attention to a sentence in the trial judge's account of the Crown case where he said that "you've got evidence the deceased was admitted to 39 Berryhill at 7 o'clock on Saturday". The learned Advocate Depute accepted that this was not accurate, since, as we have mentioned already, Symon's evidence was simply that he had seen the appellant answer the door to the deceased at 7 o'clock. He did not say that she had been admitted. The trial judge had put the point correctly earlier in his charge when he said that

Although we note that the later reference to this aspect of Symon's evidence was inaccurate, given the earlier correct summary of his evidence, we should not attach importance to that error in isolation. Nor did Mr. Boag Thomson suggest that it would be critical, if it stood by itself: his submission was that it gave added weight to his criticism of the trial judge's direction on the failure of the accused to give evidence, since it suggested that the evidence against the accused actually included testimony from Symonds that the deceased had gone into the house at seven o'clock on the Saturday evening. In our view, however, the criticism of that passage of the judge's charge is best considered on the footing that the jury accurately recalled Symon's evidence.

Counsel did not argue that the trial judge was not entitled to give a direction on the failure of the appellant to give evidence. His criticism was, rather, that the terms of the direction were unsatisfactory. What the trial judge said was:

In his report to this court on this ground of appeal the trial judge explains why he gave the direction:

It is not difficult to see why the trial judge felt that counsel's submissions called for comment by him. No problem would have arisen if he had pointed out that what counsel had said was nothing more than speculation with no basis in the evidence and that the jury required to decide the case on the evidence. What the trial judge chose to do, however, in response to the submission was to give the direction which forms the subject of this appeal. It is apparent that he chose to give a general, rather than a particular, direction because the possibility mentioned by counsel had been inconsistent with the accused's stated position that he had simply returned home at about eleven o'clock, gone to bed, got up in the morning and gone back to his grandmother's for breakfast.

It is not difficult to see why the trial judge was spurred on to give the direction by this submission on behalf of the defence. Mr. Boag Thomson, on the other hand, submitted that he had simply intended to point out to the jury that the inference which the Crown invited the jury to draw was not the only possible inference from the evidence. It is, of course, true that the evidence admitted of other possible inferences. For example, during the course of the hearing of the appeal, it was pointed out that another possible inference might be that the deceased had been killed by someone at 39 Berryhill, that her body had been taken from the house, and that attempts had been made to remove the signs of the crime, all while the appellant was absent on the Saturday evening, so that he would have returned to the house after everything was over. There is nothing strange in discovering that circumstantial evidence may give rise to a number of possible inferences since that is one of the characteristics of evidence of that type. When presented with such evidence, the jury have to decide whether they draw the inference that the accused is guilty of the crime.

It is indeed precisely because there may be more than one possible explanation for the evidence in a case that the court has indicated that in special circumstances the jury may find it easier to draw the inference that the accused is guilty if he does not give evidence. Since counsel accepted that in this case the circumstances did justify giving a direction, it is not necessary for us to consider what constitute "special circumstances" for these purposes.

Counsel's submission was that a direction of this kind required to be given with particular care and precision, and that the judge would usually require to refer to the particular matter or matters about which the accused might reasonably have been expected to give evidence. Otherwise, as had been observed in Stewart v. H.M. Advocate 1980 S.L.T. 245 at page 252, there was a risk that the jury might form the erroneous impression that the failure of the accused to give evidence could be used as more generally supportive of the Crown case. In the submission of counsel the direction given in this case had been insufficiently precise to avoid that risk.

In advancing his submission on this point, Mr. Boag Thomson appeared to attach importance to what he claimed had been a change of front by the Advocate Depute between the time of the submission of no case to answer and the time when the Advocate Depute addressed the jury. The appellant's decision not to give evidence had been taken after the rejection of the no case to answer submission and on the basis of the apparent attitude of the Crown at that stage. The direction of the trial judge should have taken account of that change in the approach of the Crown.

According to Mr. Boag Thomson, when dealing with the no case to answer submission, the Advocate Depute had concentrated on the evidence relating to the Wednesday evening when the deceased had called at 39 Berryhill and had quarreled violently with the appellant. Eventually the other people present had gone away and the appellant and deceased were left alone together. The Advocate Depute had submitted that the appellant would have had the opportunity to kill the deceased then, following the quarrel. Accordingly, if the jury accepted the evidence of opportunity plus the forensic science evidence, they would have been entitled to infer that the accused killed the deceased following their quarrel on the Wednesday. That was, said counsel, the approach which the defence understood that the Advocate Depute would take in presenting the Crown case to the jury and it was in the face of that case that the appellant had decided not to give evidence. There was nothing about a case of that kind which cried out for the appellant to explain it in the witness box, since there were actually various Crown witnesses who spoke to the fact that the deceased had been alive in the days after the Wednesday. In fact, however, when he came to address the jury, the Advocate Depute took a different line and invited the jury to convict the appellant on the basis that he had killed the deceased on the Saturday evening or the Sunday morning.

The minute of proceedings reveals a rather different picture of the Advocate Depute's reply to the submission of no case to answer. It records him as saying that

This minute makes it plain that, while the Advocate Depute began by referring to the evidence about the Wednesday night, he went on to refer in detail to the evidence about the Saturday evening. The defence could therefore have been under no illusion that the Crown were somehow confining their case to the events of the Wednesday evening and ignoring the events of the Saturday evening. We therefore reject the argument based on the supposed content of the Advocate Depute's reply to the no case to answer submission.

Nevertheless even the very terms of the Advocate Depute's reply as recorded in the minutes show that the evidence in the case could be approached in a variety of ways. That being so, it would clearly have been important for the jury to understand in what circumstances the trial judge intended his direction to apply. Unfortunately, for the reasons which he explained in his report, he chose to give a very general direction without any reference to the particular circumstances. So, for instance, it seems likely that the judge would have intended his direction to apply at least if the jury accepted Symon's evidence that the appellant opened the door to the deceased at 7 o'clock on the Saturday evening and if they inferred from the forensic pathology evidence that the deceased had been killed later that evening or the following morning. But the trial judge did not so direct them. Nor did he say whether his direction was intended to apply, say, if the jury rejected Symon's evidence or if they drew a different inference about the time of the deceased's death.

In our view also particular care required to be taken in giving the direction in a case where, although the appellant had not given evidence, the jury had before them a mixed statement by the appellant to the police in which he said that he had been at his grandmother's house during the earlier part of the Saturday evening, not returning home until about 11 o'clock. In these circumstances the direction indicating that "the accused doesn't give [an] explanation" or that "there's a possibility that there might be an explanation but no such explanation is given" might seem to indicate to the jury either that they could not take account of that part of his statement or that it fell to be rejected. This passage might have been particularly puzzling to a jury who had already been directed by the judge earlier in his charge that if the appellant's statement to the police "contains anything by way of an explanation on the part of an accused, then you have to treat that as part of the evidence to which you give your consideration ..." (emphasis added). While a lawyer listening to the charge might not have been in doubt about what the judge intended, we are not satisfied that the jury may not have been misled by it.

We accordingly reach the conclusion that the trial judge's direction about drawing inferences of guilt was insufficiently precise in the circumstances of this case and accordingly amounted to a misdirection. That direction went to the heart of the jury's function in assessing the case against the appellant. In the circumstances we are satisfied that there has been a miscarriage of justice. We shall accordingly set aside the jury's verdict, quash the convictions and grant the Crown authority to bring a new prosecution in accordance with Section 119 of the Criminal Procedure (Scotland) Act 1995.