Scottish High Court of Justiciary Decisons

Gormley & Anor v. Her Majesty's Advocate [2002] ScotHC 1 (12 February 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lord Kingarth Lord Carloway	Appeal No: 180/99 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL by DANIEL and ELLA GORMLEY Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellants: Murray, Q.C., McCallum; McKay & Norwell

Respondent: Batchelor, Q.C., A.D.; Crown Agent

12 February 2002

1. This appeal proceeds in the name of the parents of the late Harry Edward Watson Gormley against their son's conviction on a charge of murder of his young child. The trial itself occupied some six days of evidence between 5^th March 1999 and 12^th March 1999 and, following speeches for the Crown and the defence, the jury were charged on 15^th March.
2. The circumstances giving rise to the conviction are fully set out in trial judge's report and we do not rehearse them. Suffice it to say that the Crown case depended on the acceptance by the jury of opinion evidence given by medical witnesses and forensic pathologists for the Crown as to the cause of death of the child. The thrust of these opinions had been challenged in evidence from medical witnesses led for the defence. At the outset of the appeal Mr Murray for the appellants accepted that in his charge to the jury the trial judge had properly set out the issues which the jury required to consider. In particular, the trial judge had reminded the jury that the issue of what inferences fell to be drawn from the medical evidence was for them to determine and that it was not for the experts to judge the accused. We have read the transcript of the charge and it is wholly unexceptionable.
3. The grounds on which the appeal proceeded are within a limited compass. They are directed to an allegation that the trial judge's conduct of proceedings was unfair to the accused and biased in favour of the prosecution. It is alleged that the trial judge had failed to exhibit the proper detachment and impartiality of a judge trying a criminal cause and had acted towards the defence in such a manner as to deny the accused the appearance or substance of a fair trial particularly in respect of his interventions. Evidence of this bias in favour of the prosecution was, it is said in the written grounds of appeal, to be deduced from four specified "interventions" in the course of the evidence. It is averred that, regardless of the directions given to the jury in his charge, the trial judge unduly imposed his views on the jury or at least would be seen so to do to the independent impartial observer and thus denied to the accused the substance or appearance of a fair trial as a result of which there has been a miscarriage of justice.
4. The transcripts of the evidence given during the course of the trial have been provided to us. In opening his submissions Mr. Murray very properly conceded that, having had the benefit of reading the transcripts of the evidence relating to two of the "interventions", there was no merit in the allegation forming the foundation for the appeal so far as these matters were concerned. Indeed, in intervening as he did both then and on other occasions elsewhere in the evidence, the trial judge had been properly carrying out his function to ensure that the jury understood the evidence and, as he judged it necessary, to clarify for the jury matters of medical evidence which it was important for the jury to understand.
5. What is left of the grounds of appeal relates to two "interventions" which took place at different points in the evidence. The first took place on the second day of the trial. It occurs in a passage during the cross-examination of a Crown medical witness, Dr. Mackenzie, in which, when the context is examined, it is clear that the trial judge was properly raising with the cross-examiner the meaning of a question being asked by counsel against the background of the evidence already given by the witness. The exchange between counsel and judge which then took place plainly proceeded on a misunderstanding occasioned by the response of counsel. It was of short duration and the trial judge ended the matter with an apology to counsel for perhaps having used certain words unwisely. The cross-examination thereafter proceeded without incident. The issue giving rise to the judge's intervention was fully covered in what followed in evidence. In our opinion, on no view of the exchange can it be said that the trial judge gave any indication of bias in favour of the Crown during it. The second of the two "interventions" occurred on the fifth day of the trial after counsel for the accused had asked a question in re-examination of a defence medical witness, Dr. Al-Alousi.. The advocate depute intervened before any answer was given by the witness. He invited the trial judge to ask the jury to leave the court as he wished "to raise a matter of law". The trial judge thereupon asked the jury to retire. When the jury had done so, the trial judge invited the advocate depute to explain the point of law. This turned out to be directed to the terms in which the question was posed. It was suggested that there was a personal attack upon the advocate depute inherent in the question. The exchange that then followed could be said to have been unfortunate, not least since the trial judge made clear that he did not consider that there had been any intention on the part of counsel to be derogatory of the advocate depute in the form of his questions. He then asked counsel to take note of what had been said by the advocate depute and intimated that he was not taking the matter further. After a further exchange between counsel and the advocate depute, the incident ended with the trial judge making clear that he did not wish the matter to get out of hand in any way and asking counsel to bear in mind what had been said by the advocate depute. The jury were thereafter recalled and re-examination continued without any further incident. In our opinion, neither the exchange nor the note on which the exchange ended, when taken in context, could on any view be said to disclose any bias on the part of the trial judge in favour of the Crown or against the accused. Furthermore, the whole exchange took place outwith the presence of the jury.
6. For all these reasons we are entirely satisfied that, when the transcript of the trial proceedings is properly considered, there never was any foundation for, let alone any substance in, what on the face of the grounds of appeal was a very serious allegation directed against the conduct of the trial by the trial judge. The appeal against conviction is accordingly refused.