Scottish High Court of Justiciary Decisons

PHILIP GEORGE GARDEN v. HER MAJESTY'S ADVOCATE [1999] ScotHC 101 (5th May, 1999)

The appellant and a co-accused, Victor Edward Henley stood trial on a charge of murder in the following terms:

On 28 August 1996 the appellant was found guilty, by a majority verdict of the jury, of that charge, under exception of the words "repeatedly strike him on the head and body with a crutch, a screwdriver, and other instruments". The co-accused was found guilty only of assaulting the deceased by a punch to the face and a kick to the body. In the appellant's original grounds of appeal it was maintained that the trial judge had been in error in not directing the jury to disregard certain remarks which were made by the solicitor advocate for the co-accused. These grounds of appeal were superseded by other grounds in which it was maintained that she had misdirected the jury in regard to certain of the evidence. When the appeal was argued before this court the submission made on behalf of the appellant was restricted to the contention that she had misdirected the jury in regard to the evidence given by pathologists at the trial, to which I will require to refer later in this opinion.

The circumstances leading up to the fatal incident were as follows. The two accused had spent the evening drinking with the deceased in his flat. Large quantities of alcohol were consumed, and at one stage an argument developed between them. Neighbours gave evidence of hearing prolonged loud noises and intermittent banging from the flat. Shortly before midnight the co-accused telephoned the caretaker of the block of flats, asking him to summon assistance. The caretaker, who gave evidence of hearing crashing noises while the co-accused was speaking to him, called the police. Shortly thereafter two police officers arrived at the deceased's flat. They gave evidence that they saw the appellant, who was sitting on the floor with his back against a wall, assaulting the deceased, who was then lying apparently unconscious on the floor, by bringing his fist down heavily on top of his head like a mallet. The deceased was subsequently pronounced dead. There was medical evidence that his death occurred probably around midnight. It was common ground between the pathologists that there were some 54 sites of injury to the deceased, of which 18 were to his head. Two of the injuries to the head, one behind the left ear and another to the right forehead, were more severe. There was no single blow which could be regarded as the fatal blow. Death was caused by the cumulative effect of a number of blows to the head.

The appellant was interviewed by police officers shortly before 5 a.m. During that interview he stated that he had acted in his own defence after being attacked by the deceased. He admitted delivering five hard punches to his head. However, he denied delivering any other blow after the co-accused went to telephone for an ambulance, saying that he had no reason to do so as the deceased was already immobilised. The appellant's hands were described as large and spade-like. There was an injury on the right hand. The appellant was right-handed. There was forensic evidence which supported the view that the co-accused had kicked the deceased, but there was no forensic evidence to suggest that the appellant had done so, and evidence as to the appellant's physical disability tended to suggest that it was unlikely that he would have done so.

The Crown sought the conviction of the appellant and the co-accused on the basis that they had been acting in concert in attacking the deceased. Alternatively they sought their conviction on the basis of their own individual actions. The appellant maintained a special defence of self-defence, in line with his statements during the police interview to which I have already referred. The co-accused accepted that he had punched and kicked the deceased once, but maintained that he had been acting in defence of the appellant.

Evidence was given by three pathologists, namely Professor Anthony Busuttil and Dr. Paul Fineron for the Crown, and Professor Peter Vanezis who was called as a witness for the appellant. Each of those witnesses gave evidence at some length, but for present purposes it is sufficient to concentrate on the point with which the present appeal is concerned.

It is convenient to begin with Professor Vanezis. He gave evidence that, in his view, it was more likely that the vast majority of the head injuries had been inflicted with a shod foot than with a fist. This applied in particular to the two principal head injuries to which I have referred. It was unusual for a fist to produce the sort of injuries which he found. Since it was a question of degree he could not exclude that a fist had been used, but it was, in his view, much less likely than a foot. Professor Busuttil and Dr. Fineron were of the view that the blunt force trauma to the head was due to the cumulative effect of repeated blows which could have been caused by punching, kicking or by striking with a blunt object or a combination of same. From various passages in the evidence of Professor Busuttil it can be seen, as was accepted by the Advocate depute, that he adopted a neutral position as between whether the head injuries were caused on the one hand by fist or on the other by kicking. At one point he described the effect of punching with a fist as depending on whether the hand was being used on its own or was clutching something solid; the force behind the blow; and what he described as "the raw muscle power of the person providing the blow". Thus a person who was used to fighting with a single punch could produce much more effect than someone else who was not trained in that way. These points did not appear to incline him to think punching was more likely than kicking, but rather were taken by him as indicating a number of factors which could assume significance in the particular case. Dr. Fineron also adopted a neutral stance in regard to the different means by which blows could have been inflicted on the deceased.

During the course of her charge the trial judge gave directions to the jury in regard to the matter of concert. She turned thereafter to the individual actions of each of the accused. Her remarks were prefaced by these words:

After referring to the trauma which the deceased's head had suffered she went on to state:

At this point I note that the trial judge in her supplementary report states that the word "stick" in the last sentence of the first paragraph should read "fist". I did not understand that this correction was disputed.

Mr. Jackson, for the appellant, accepted that there was sufficient evidence to entitle the jury to convict the appellant in the terms in which they did. However, the evidence of the pathologists was of critical importance in regard to the question whether the head injuries which led to the death of the deceased were caused by punching as opposed to kicking. In this respect the trial judge had misrepresented the evidence of the pathologists, and in particular the evidence given by Professor Busuttil, which was neutral on that point. Indeed, in two passages Professor Busuttil said that there was no significant difference of view between him and Professor Vanezis. However, the trial judge had contrasted their evidence in an obvious manner. In the last sentence of the first paragraph she said that Professor Busuttil had taken a different view. The context for that difference of view was provided by the preceding sentence in which she referred to their evidence as to "the relative likelihood of the blows to the head having been inflicted by punches or kicks". At no point had Professor Busuttil expressed any preference for punching rather than kicking. Mr. Jackson contended that no juror would fail to understand that the trial judge was referring to a contrast between the pathologists in regard to their preference. He was encouraged in that interpretation by the fact that the trial judge in the first of her reports described Professor Busuttil along with Dr. Fineron, as tending to the view that most of the head injuries were likely to have been caused by punches with a fist rather than kicks with a shod foot.

I am not persuaded that there was any material misdirection on the part of the trial judge. It may be that she had gained the impression from the evidence that Professor Busuttil was, if anything, inclined to favour the view that punching was a more likely explanation than kicking. This may have been what she had in mind when she referred to a difference of opinion as to the relative likelihood of those two mechanisms. However, in the following sentence, which was no more than a brief explanation of the point to which she was referring, she did not go further than reminding the jury that Professor Busuttil had taken "a different view". As the Advocate depute pointed out, she did not say that he had an opposite view to that of Professor Vanezis. In any event, it requires to be borne in mind that the remarks made by the trial judge in regard to the evidence of the pathologists were extremely brief. They were prefaced by her pointing out to the jury that it was their understanding of the evidence of the pathologists which counted. At an earlier stage of her charge she specifically directed the jury that it was for them to decide what they made of the evidence, how they evaluated it and what impressions and conclusions they decided should be drawn from it; and that it was their recollection of the evidence which mattered. In the course of his remarks Mr. Jackson emphasised that a trial judge's rehearsal of the evidence should not be saved from being regarded as a misdirection by giving it the benefit of a legalistic interpretation. While that may be so, it is also important that any examination of the charge should not be subjected to hypercritical examination, in which an alleged misdirection is based on the trial judge's rehearsal of the evidence when that would not, as a practical matter, have led to any misunderstanding on the part of the jury who were well aware of the position taken by each of the witnesses.

In these circumstances I consider that the ground of appeal is not well-founded, and accordingly that the appellant's appeal against conviction should be refused.

I am in agreement with the opinion of your Lordship in the chair. There is, however, one matter which I should wish to emphasize.

A striking feature of this appeal is that, although the appellant was convicted on 28 August 1996 and a Note of Appeal, under the 1975 Act, was lodged on 5 November 1996 by those then representing him, the additional ground of appeal, which is the only one now advanced, was not lodged with the Clerk of Justiciary until 18 December 1997. On 23 June 1998 the proposed new ground was allowed by the court to be substituted for the previous grounds of appeal. In the event, this Court heard submissions in support of a ground of appeal advanced on behalf of the appellant by counsel who did not represent him at the trial and no submissions in support of the grounds of appeal lodged immediately after the trial. The grounds of appeal originally lodged contained no hint of the assertion now advanced that the judge's directions were calculated to mislead the jury in respect of the evidence of the pathologists. It may be, in rare cases, that it is only upon a careful examination of the printed text of what the presiding judge has said to the jury in the course of the charge that it first appears that the trial judge may have made some error or misled the jury; so it would be going too far to say that the court should give no countenance to criticisms of the judge's charge that appear to be simply the product of close textual analysis. In the present case, however, the error is said to be that ordinary members of the jury, listening to the judge in court, would have understood that the judge was telling them that the evidence of Dr. Busuttil was not just different from the evidence of Professor Vanezis but was to the opposite effect. In short, it is suggested that the trial judge misled the jury openly in court by distorting the import of vital medical evidence.

We have rejected that submission for reasons that your Lordship in the chair has given. But I should go further. I consider that if the trial judge had truly been guilty of presenting a distorted picture of an important aspect of the evidence, that would have been immediately obvious. Someone would have been bound to notice it at the time; after all, the trial lasted from 19 to 28 August 1996; and the relationship between the injuries inflicted by his assailants and the death of the deceased was a central issue in the trial. If the effect of the words used upon ordinary members of the jury was likely to be seriously misleading, someone, whether representing the Crown or the accused, would surely have been struck by the error. No one apparently was. For if the Advocate depute had noticed anything seriously misleading about the judge's directions on an important matter of fact, it would have been open to him to rise at the conclusion of the judge's charge and invite the trial judge to hear a short submission as to the accuracy of that part of the charge. I am not at all surprised that the Advocate depute made no such intervention in this case because I do not think that the passage was in any way misleading. Of course, those representing the accused did not intervene; indeed, one would hardly expect them to do so at that stage; they have no duty to point out errors that they think they have detected in the judge's directions: Thomson v H.M. Advocate 1988 S.C.C.R. 534. However, the fact that the Advocate depute did not intervene and that no one who represented the appellant at his trial saw fit to advance this present criticism when the original grounds of appeal were drafted suggests to me quite forcibly that what was said by the trial judge and is now criticised did not appear misleading to anyone at the time. We have been invited to suppose that the "ordinary members of the jury" would have picked up nuances that apparently escaped all the professionals involved. Then, more that a year later, others not involved in the trial but perusing the printed word of the charge have sought to characterise the judge's words as misleading. That submission is rejected; and I hope that nothing we said here could encourage an approach by the court, or by anyone else, to the terms of the judge's charge based solely upon close textual examination, analysis and criticism. It has also been emphasised repeatedly that the judge's charge must be looked as a whole. Looking at the charge of the trial judge in the present case as a whole I am wholly satisfied that the jurors would not be in any way misled by the single sentence upon which the appeal focused in relation to the evidence of the pathologists which was heard and critically examined over a period of several days and referred to at length in the submissions to the jury.

Perhaps the time has come for the legislature to give some consideration to the possibility of imposing upon those who represent accused persons at a jury trial a duty to bring to the attention of the presiding judge any alleged material error relating to the facts or any alleged omission of an essential direction so that possible errors can be addressed and, if necessary, remedied before the jury considers its verdict. This is not a simple matter and it has possible disadvantages; but a procedural requirement that any material points should, where possible, be raised at the trial itself might assist in determining what the true issues really were, and help to avoid unnecessary appeals.

I agree entirely with your Lordship in the Chair. Even if in some degree the trial judge did misrepresent the evidence - as to which I am not fully satisfied - the reference in question was a fleeting one and I do not consider that it either did result, or could have resulted, in any miscarriage of justice. This appeal should accordingly be refused.

For the rest, I note what Lord McCluskey has said in the concluding paragraph of his Opinion. I express no view as to what, if any, procedural reforms might be possible but I sympathise fully with his objective of avoiding unnecessary appeals.