Scottish High Court of Justiciary Decisons

PAMELA ANN GOURLAY v. HER MAJESTY'S ADVOCATE [2001] ScotHC 6 (16th February, 2001)

[1] On 9 March 2000, the appellant was convicted by a majority verdict of the jury on a charge of assault, robbery and murder committed on 9 October 1999. There were two other charges on the indictment, namely, a minor charge of theft and a charge of being concerned in the supply of cannabis resin between 19 July 1999 and 19 October 1999, to both of which the appellant had pled guilty. The appellant was sentenced to detention for life with a recommendation for a minimum period of 14 years detention, backdated to 20 October 1999, on the murder charge. She was admonished on the theft charge and sentenced to three years detention, concurrently, on the charge under the Misuse of Drugs Act 1971.

[2] Two grounds of appeal were argued. The first was that the trial judge had acted oppressively in repeatedly interrupting and questioning the accused in the course of her evidence and so adversely affecting the presentation of her evidence before the jury. The second was that the judge failed to present the defence case in a fair and balanced manner in the course of his charge to the jury in respect that he began his charge, prior to formal directions, by dealing with the evidence of Peter Cumming, a witness who alleged that an incriminee had admitted responsibility for the murder, and by highlighting certain points in that evidence, so prejudicing the accused's defence by enhancing the credibility of the incriminee.

[3] Before considering these grounds, we require to set out the position in regard to the murder charge and the evidence in some detail. The indictment alleged that on 9 October 1999, at an address in Great Western Road, Aberdeen, the appellant assaulted Melanie Sturton, repeatedly struck her on the head and body with a knife, robbed her of a variety of items of property including two bank cards, certain gift vouchers and a quantity of jewellery, and murdered her. At the address libelled, there were a number of separate flats, the flat occupied by the appellant and her boyfriend Kris Taylor, being above the flat occupied by the deceased. The Crown case was that between 8.30 and 9.00 a.m. on 9 October the appellant changed her clothing, put on rubber gloves, armed herself with a knife, went down stairs, burst in on the deceased and attacked and murdered her. There was evidence from two other residents in the house that they had heard screaming and shouts for help at about 8.40 a.m. There was also evidence that a clock in the deceased's flat was stopped showing the time 8.55 a.m., although the defence put forward an alternative possible explanation of that fact. There was evidence from Kris Taylor and two other witnesses to the effect that the appellant had been begging for a pound bus fare in Union Street and had returned alone to her flat at about 8.20 a.m. The murder was not discovered for some time and, in the meantime, the appellant had met her parents and gone into town, shopped and had lunch. Eventually, however, the appellant did make a number of admissions, including a confession made in a video taped interview with the police. A bloodstained knife and heavily bloodstained clothing were found in the appellant's flat, together with most of the stolen items from the deceased's flat. In the course of the day on which the murder was committed, the appellant spent some of the gift vouchers which were included among the items stolen and extracted £10 from the deceased's bank account by using her bank card.

[4] The appellant did not put forward any special defence until a fairly late stage in the proceedings before the trial. It appears to have been accepted or assumed that she would plead guilty to the charge and in the course of her own evidence she accepted that she had, for reasons which she sought to explain, decided to "change her plea". However, a special defence was eventually lodged, incriminating Kris Taylor as the person who had committed the murder. In her evidence, the appellant explained that she had been out with Taylor during the night of 8 to 9 October and that she had attempted to use her own card to obtain money from two bank cash machines in the early hours of the morning but had been unsuccessful. She and Taylor then returned to her flat. Taylor was very annoyed because he had no money. There was then a discussion about robbing someone, in the course of which the appellant mentioned the deceased. After a time, the appellant and Taylor changed their clothes and went down to the deceased's flat, Taylor taking a knife. When they got to the door, and the deceased answered the door, Taylor pushed the appellant aside and went in, followed by the appellant. There was a struggle between Taylor and the deceased and the appellant described Taylor as "going at her with the knife". Eventually, after the struggle, which was described by the appellant in more detail, the deceased fell to the floor. The appellant picked the deceased up and turned her and as a result the appellant's clothing was covered with blood. There was also blood on Taylor's clothing. The appellant took the deceased's wallet and keys and a CD player, and she and Taylor returned to her flat, where they changed their clothes and went to bed. According to the appellant, all this took place at about 3 a.m. When they woke up, she and Taylor left the flat. She tried to obtain money from a cash machine, with her own card: this was just before 8 a.m. She also attempted to beg from a lady, before returning to her own flat. Taylor did not return with her. After her return, she took the deceased's keys, entered her flat and removed further property to her own flat, including jewellery. The appellant's explanation for not incriminating Taylor at an earlier time was that she and Taylor had agreed not to grass on one another and that it was only as the trial date approached that she realised that he was "out there" and getting away with the crime.

[5] The incriminee Kris Taylor gave evidence during the first week of the trial and denied any involvement in the murder. The Crown position was that there was other evidence that put Taylor well away from the scene at the time when screaming was heard by the downstairs neighbours, that is at about 8.40 a.m. Early in the second week of the trial, counsel told the judge, in chambers, that a late witness, Peter Cumming, had come forward claiming that, after giving his evidence, Taylor had made statements containing admissions that he was the murderer. The trial was adjourned to allow enquiries to be made and on the following day the advocate depute called the witness Cumming but took only formal evidence from him. Counsel for the appellant then, in cross-examination, elicited from Mr. Cumming evidence of a series of statements which, he alleged, Taylor had made to him. The judge expressed some concern at this manner of proceeding because he took the view that Cumming's allegations could only be used in relation to the credibility of Taylor as a witness and that Taylor should have an opportunity of commenting upon the allegations. In due course, Taylor was recalled and denied making the statements attributed to him.

[6] That is the background to the two grounds of appeal put forward. As we have already indicated, the first ground concerned what was described as the judge's repeated interruption and questioning of the accused in the course of the appellant's evidence which, it was submitted, adversely affected the presentation of her evidence and went beyond anything that could be justified as seeking clarification of the evidence. It is set out in the ground of appeal that the judge's actings were such as to adversely effect the jury's view of the appellant's credibility, which, as is obvious from the narrative of the circumstances given above, was an important issue in the trial. The second ground of appeal is that when the judge began his charge, before giving formal directions in relation to murder and other matters, he dealt with the evidence of Cumming and highlighted discrepancies between Cumming's account of what the incriminee Taylor had said in his statements to him and the details of the crime as they appeared from the evidence. The ground of appeal further states that these criticisms were unique to the trial judge because the advocate depute had made no submissions about this evidence, and that by criticising the evidence of Cumming in this way the judge enhanced the credibility of the incriminee to the prejudice of the accused's defence. It is further suggested in the grounds of appeal that the number of interruptions, the treatment of Cumming's evidence and the prominence given to it in the charge might have given an impartial observer the impression that the judge had formed a personal view adverse to the appellant's credibility, and that the judge had thus acted oppressively.

[7] It is important to stress that counsel for the appellant, who presented his argument very moderately and responsibly, made it clear that he did not suggest that the trial judge had questioned or cross-examined the appellant in a hostile manner or in any other way treated her improperly. It was also accepted that many of the trial judge's interventions could be seen as necessary to make sure that the evidence was correctly understood since there had been difficulty, at times, in hearing the appellant's evidence. Similarly, counsel accepted that the context in the charge in which the trial judge had dealt with the evidence of Cumming was the part of the charge in which he dealt with different types of evidence, and in particular with hearsay evidence, and sought to explain to the jury what use could, and what use could not, be made of such evidence. It should be absolutely clear, therefore, that there is no question of it being suggested in this case that the judge had in any way set out to be hostile to the appellant or to influence the verdict of the jury. It may be added that, on a reading of the charge as a whole, it is quite clear that the judge dealt fully and even-handedly with all the questions of evidence which the jury had to consider and that he did so accurately, and counsel made no suggestion to the contrary. The issue in the case, therefore, is a limited one and it is whether what the judge actually did, in the respects criticised in the grounds of appeal, can be seen to have had, or to have been likely to have, an unintended but nevertheless prejudicial effect upon the presentation of the appellant's case to the jury.

[8] In his submissions, the appellant's counsel referred to a note which had been prepared giving the number of occasions on which the trial judge had, it was put, interrupted the evidence. This note reached an estimated total of 186 occasions in something in the region of four hours of evidence. That figure is, however, somewhat misleading since it was arrived at by counting each question asked by the judge as one interruption, even where a number of questions were asked by the judge in sequence or a question had to be repeated. On a number of occasions, the judge apparently required to ask a series of questions in order to obtain an audible answer and record it correctly and it would be more satisfactory, in our view, to regard each such occasion as a single interruption. If that approach is taken, the number of interruptions is considerably reduced although it remains substantial. It was submitted on behalf of the appellant that the interruptions had been sufficient to interrupt the flow of the appellant's evidence and interfere with its correct presentation. More particularly, reference was made to certain passages in the evidence. For example at page 77 and following in the transcript the appellant was attempting to explain why she had made certain statements to the police. The burden of her explanation was that she had said certain things which were not correct and which she would have expected the police to realise were not correct and which they should have known to be lies. The judge asked a series of questions to obtain a fully noted version of the appellant's evidence on this point and ended by saying:

Again at page 116 the judge asked a number of questions directed the suggestion that the appellant could not "grass Kris up" and why she felt that lying to the police would enable them to discover the truth and ended by saying:

That, it was suggested, came close to cross-examination of the appellant.

[9] Again it was suggested that in re-examination, particularly when the appellant was trying to explain when and why she had decided to incriminate Taylor, on each occasion on which counsel had brought out some aspect of the appellant's position the judge had then introduced a question, the effect of which was to disturb the flow and take away from the effect of the appellant's evidence.

[10] Notwithstanding the submissions which he made, counsel for the appellant accepted that if the only matter of which he could complain was that of the interruptions, he would have had some difficulty in suggesting that the appellant's trial had been materially prejudiced. He submitted, however, that when the question of interruptions was taken together with what was said in the charge about Cumming's evidence, then it could be seen that there was material prejudice to the appellant. We have already explained how it was that Cumming came to give evidence. It is clear from his report that the judge was concerned about the way in which that evidence had been introduced and the fact that the advocate depute had not addressed the jury in such a way as to make clear to them either the limited issue to which Cumming's evidence could properly be taken to apply or the relationship between that evidence and other evidence in the case. In his charge the judge began by pointing out to the jury that they must decide the case on the evidence that they had heard and that in general they should ignore hearsay evidence. He went on to say that that general principle applied to the evidence given by Cumming in relation to what was said by Taylor. He continued:

[11] Thereafter the judge proceeded to narrate the statements allegedly made by Taylor to Cumming. He observed that "somewhat surprisingly" the advocate depute had not offered any submissions about this evidence, possibly because he thought it unimportant. The judge then went on to draw attention to a number of points in regard to the timing of certain events and as to the detail of what had occurred, pointing out that there were differences between what had allegedly been said by Taylor to Cumming and what had appeared from other evidence. For example, according to Cumming, Taylor had said to him "I took the jewellery" or "I got rid of the jewellery and I kept the bank cards". The judge pointed out that parties had agreed that a quantity of jewellery had been found in the appellant's flat and that the appellant had said in evidence that she took the jewellery, during her visit to the deceased's flat at about 8.30 a.m. Having dealt with Cumming's evidence, the judge then went on to give general directions as to the functions of judge and jury and the onus of proof and other relevant matters, before summarising the submissions of the Crown and the defence respectively.

[12] It was submitted on behalf of the appellant that the way in which the judge had dealt with the whole issue of Cumming's evidence, by giving it prominence at the start of his charge, by drawing the jury's attention to the relationship between the alleged statements by Taylor and other evidence in the case and by some of the phraseology which he had used such as the words "somewhat surprisingly" mentioned above, the judge had tended to suggest that the credibility of Cumming's evidence was in doubt and that this might have influenced the jury's approach to the whole matter.

[13] The submission made on behalf of the appellant is a serious and important one. As we have said, it was presented on the basis that there was no question of the judge being biased or having deliberately mistreated the appellant or having set out to produce a particular result, but it was suggested that the effect of what he had done could well have been to prejudice the jury. It was clear that counsel who had appeared at the trial was himself uncomfortable at the possibility that some such prejudice might have occurred. In these circumstances, we have thought it necessary to read very carefully the whole of the evidence given by the appellant and the whole of the judge's charge. It was not suggested that anything that the judge had actually said in his charge, about Cumming's evidence or about anything else, was incorrect or unfairly expressed, either in regard to the law or in regard to the evidence which had been given. In his report, the judge explains that he had found it necessary to ask a number of questions, and sometimes repeated questions, in order to ascertain exactly what it was that the witness was saying. He also explains that he thought it necessary to make clear to the jury the precise importance of Cumming's evidence and to do so at a point in his charge when he was dealing with questions of admissible evidence rather than at some other point when he might have been dealing with the facts of the case.

[14] Looking at the whole of the appellant's evidence it is clear to us that the judge's interjections were directed to ensuring that he had correctly heard, understood and recorded the appellant's evidence and that the jury, or an impartial observer, could have been in no doubt that that was the purpose of those questions. As regards the complaint that the interjections disturbed the flow of the evidence, it is true that the number of interjections in the course of the evidence was greater than might, in general, be thought desirable and that counsel may well have felt understandable difficulty in making progress with the evidence. Nevertheless, even after giving full weight to the concerns expressed by counsel for the appellant, it seems to us that the appellant's evidence was fully presented and explained. It may be added that there was, in our view, from time to time real doubt about what the appellant was trying to say and that it was important that her evidence should be understood as clearly as possible. As regards the charge, we are satisfied that it was, as a whole, clear and entirely balanced as between the prosecution and the defence. The judge explained to the jury why he was dealing with Cumming's evidence in the earlier part of the charge and he later made it clear to them that all questions of credibility were for them to decide. The question of the relationship between Cumming's evidence and the other evidence in the case was clearly an important one and the judge could properly regard it as necessary to say something to the jury about it. It was suggested that the positioning of the discussion of Cumming's evidence gave it undue prominence, but any impression of that kind would, in our view, have been dispelled by later passages of the charge in which the judge placed the question of the reliability of the evidence of Cummings and of Taylor, in its proper context in relation to the arguments of the Crown and the defence on the facts of the case. We also think that there was no expression used by the judge which was, in its context, really likely to have been taken by the jury as casting any adverse imputation on the defence case. The charge has to be judged as a whole in the whole circumstances of the trial and, so judging it, it appears to us that the judge did not fall into any error which would have been liable to prejudice the jury or lead to a miscarriage of justice. In these circumstances, therefore, the appeal must fail.