Scottish High Court of Justiciary Decisons

The case came before the Appeal Court comprising Lord Hamilton, Lord Kingarth and Lord Drummond Young. The court made avizandum. The opinion of the court was delivered by Lord Hamilton on 29th May 2002, when the court comprised Lord Marnoch, Lord Osborne, and Lord Hamilton. On that date the court further continued the appeal to a date to be fixed, and directed that a procedural hearing be fixed in the week commencing 8 July 2002 and that the Crown should intimate at that time details of the witnesses they would wish to lead at a further hearing.

OPINION OF THE COURT—

[1] The appellant was on 6 January 1992 convicted after trial of the murder of his wife. As the appellant admitted being responsible for her death, the only issue at the trial was whether the crime was one of murder or of culpable homicide. The appellant appealed against his conviction on various grounds but on 19 March 1993 his appeal was refused. The proceedings are reported. More recently the Scottish Criminal Cases Review Commission, having considered an application by the appellant, referred his case to this court under part XA of the Criminal Procedure (Scotland) Act 1995 (as amended). In accordance with practice the court, following receipt of the reference, ordained the appellant to lodge written grounds of appeal. That has been done. These largely, though not exactly, reflected the statement of reasons given by the Commission under sec 194D(4)(a) of the Act. On 19 October 2000 the court continued the appeal to a diet ‘to allow debate on the relevancy of the appellant's affidavit’.

[2] The appellant and his wife were married on 31 July 1988. A child, Victoria, was born on 7 May 1990. Mrs McCormack was killed by the appellant on 19 September 1991. At his trial the appellant gave evidence, in the course of which he gave an account of some of the events surrounding the death of his wife. He spoke to a quarrel, involving a degree of violence on either hand, between his wife and himself but testified that he had no memory of what had occurred immediately preceding her death at his hand. Although it was contended on his behalf at the trial that the verdict should be one of culpable homicide on the basis of provocation by the deceased in the form of physical acts by her, the jury rejected that contention. A ground of appeal that the trial judge had misdirected the jury on the issue of provocation was rejected on appeal. Nothing further need be said about that ground.

[3] The appellant, however, also presented to the court in 1993 a ground of appeal based on sec 228 of the Criminal Procedure (Scotland) Act 1975 (as substituted by para 1 of sched 2 to the Criminal Justice (Scotland) Act 1980) which provided that among the matters which might be brought under review on appeal was ‘any alleged miscarriage of ustice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial’. The evidence on which the appellant then sought to rely included an affidavit dated 22 December 1992 in which he swore that he had recovered a recollection of events which he had been unable to remember at the time of his trial. The affidavit set out that recollection. It included for the first time an account of words allegedly spoken by Mrs McCormack in the course of the struggle immediately prior to the killing. The court also had before it reports from three psychiatrists in which opinions were expressed to the effect that the appellant had by reason of emotional trauma genuinely suffered from amnesia at the time of the trial. These experts were not, of course, able to express a view on the veracity or otherwise of the fuller account.

[4] The court rejected this ground of appeal essentially on two bases. First, it held that on a sound interpretation and application of sec 228 (as substituted) of the 1975 Act (as amended) the account contained in the affidavit was not ‘additional evidence’. It was, it was held, a different account given by a person who had given an account in evidence at the trial. As such it did not fall within the scope of the statutory provision. Secondly, the court stated—

‘In any event we are not satisfied that, even if this could be regarded as additional evidence, it is evidence of such significance that a verdict which was reached in ignorance of it must be regarded as a miscarriage of justice.’

That latter view turned on an analysis of the terrms of the affidavit, the court's conclusion being that the words allegedly used by the deceased amounted to no more than insulting remarks which could not under the law of Scotland constitute a valid basis for a plea of provocation.

[5] Since the disposal of the appellant's original appeal the statutory provisions concerned with the scope of appeals have been amended. Section 106 of the Criminal Procedure (Scotland) Act 1995 (as amended by the Crime and Punishment (Scotland) Act 1997) provides, inter alia:

‘(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on—

1. (a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; …

   1. (3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard. …

      1. (3) (C) Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence—

         1. (a) which is—

            1. (i) from a person … who gave evidence at the original proceedings; and

         2. (b) which is different from, or additional to, the evidence so given, it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.’ Subsection (3D) defines ‘independent evidence’.

[6] At the hearing of this appeal the Advocate Depute accepted that there did exist evidence which had not been heard at the trial and that there was a reasonable explanation supported by independent evidence of why it was not so heard. He resisted the appeal on the ground that the evidence was not of a significance which, if accepted, could found a basis for reduction of the offence from murder to culpable homicide on the basis of provocation.

[7] Before addressing the matters in dispute in this appeal it is appropriate that the court records its own view on the effect of the amended legislation. We are satisfied that under that legislation this court has power to review the appellant's conviction, albeit the evidence on which that review primarily proceeds may be evidence which, in its fuller form, comes from a person (namely, the appellant) who himself gave evidence at the trial. It seems plain that the amended legislation was formulated to meet a concern that the earlier legislation, as interpreted in McCormack v HM Advocate, was unduly restrictive. We are accordingly entitled, notwithstanding the decision of this court in the earlier appeal, to revisit the question whether evidence by the appellant tendered since his trial could found a basis for provocation. We should note at this point that the present grounds of appeal include a contention that the decision of the court in the earlier appeal was in error in respect of its interpretation of ‘additional evidence’. Senior counsel for the appellant stated at the hearing before us that, while he was prepared to maintain that contention, it was unnecessary in view of the statutory changes to do so. In the circumstances it is unnecessary for us to comment on that contention.

[8] The substantive issue before the parties at the hearing of this appeal concerned whether the evidence tendered by the appellant in affidavit form subsequent to his trial could found a basis for provocation. The court in 1993 had before it the appellant's affidavit sworn on 22 December 1992. The material part of that affidavit is narrated in the report of that case at pp 585–6. In the course of the present proceedings there was lodged a further affidavit by the appellant dated 19 April 1999. Although it deals generally with the same subject matter, it is not in identical terms to that earlier sworn. Senior counsel for the appellant indicated that he was not perilling his argument on any changes between the first and the second affidavits. We find it unnecessary at this stage to set out the terms of the second affidavit.

[9] Senior counsel for the appellant submitted that that part of the earlier decision which was concerned with whether there was a basis for provocation was not binding on this court. The earlier appeal had been refused on the ground that the evidence tendered was not ‘additional evidence’. The observations in relation to provocation were introduced by the expression ‘in any event …’ and the views there expressed were unnecessary for the decision. They could properly be characterised as obiter dictarather than forming part of the ratio decidendi. Reference was made to the definitions of those terms in the Glossary in the Stair Encyclopaedia and to Lord McCluskey's observations on that topic in Lord Advocate's Reference No 1 of 2001 at para [3]. In any event, where a case already disposed of had been referred back to the High Court by the Commission, the range of questions which could be entertained was not narrowly limited. It included reconsideration of whether there was a sufficiency of evidence (Campbell v HM Advocate especially per Lord Justice-Clerk Cullen at pp 135B–G). Here, in substance, the critical issue was whether there was a ‘sufficiency’ of evidence to lay a foundation for provocation. Accordingly, event if the relevant law had not developed in any important respect since the hearing of the earlier appeal (which, it was contended, it had), it was still open to this court in the circumstances to revisit the matter in issue. In doing so it was appropriate for the court to deal with it on the basis of the current understanding of the common law and on the basis of present day standards (Boncza-Tomaszewski v HM Advocate, especially per Lord Justice-General Rodger at para [5]). The approach by the court in the previous appeal had been wrong. It had applied too semantic, too clinical an approach to the affidavit evidence tendered, particularly where the significant words were uttered in the context of the physical actings of the deceased. Moreover, when the evidence was viewed in light of the law in this area as now understood, it could be seen as being capable of having a material effect on a jury's determination. Counsel referred to HM Advocate v Hill, McKay v HM Advocate, Rutherford v HM Advocate and Drury v HM Advocate. In any event, the appeal should not be disposed of against the appellant without the court first hearing him give oral testimony.

[10] The Advocate Depute submitted that the appeal should be refused. It was accepted by the Crown that the court should approach the evidential question before it in the way indicated in Campbell v HM Advocate. But it was not open to this court, as presently constituted, to take the view that the judges who had determined the earlier appeal had proceeded on some error of law. The law on provocation as expressed in McCormack v HM Advocate remained the law and the decision in that case was authoritative. The law had there been corrrectly stated and correctly applied. The Advocate Depute analysed the law as expressed in the cases cited by senior counsel for the appellant. He also referred to McDonald on the Criminal Law of Scotland (5th ed.) at pp.93 and 97. Rutherford v HM Advocate did not involve an extension of the law. It was consistent with the law as expressed in McCormack v HM Advocate. On a sound application of the law, as consistently expressed, to the evidence in the appellant's first affidavit, it could be seen that no proper basis for provocation was there laid. It had been accepted on behalf of the appellant that his second affidavit did not materially alter matters, as indeed was the case. The evidential material relied upon by the appellant was not of a significance which could entitle a conclusion that a miscarriage of justice had occurred. If the court was not disposed to refuse the appeal at this stage, issues of credibility and reliability would also arise. If the court was minded to hear evidence orally from the appellant, the Crown would wish to consider whether it also might lead other evidence before the court.

[11] In this opinon we have deliberately not set out in detail nor expressed any views on the analyses made by counsel respectively of the affidavit evidence before us. That is because we have decided that in the interests of justice we should before determining this appeal hear evidence orally from the appellant (and possibly other testimony). Delicate questions arise as to the content and interpretation of the existing affidavit evidence which it would be inappropriate to discuss in advance of hearing the oral testimony. It is sufficient to say at this stage that the affidavit evidence, in our view, raises questions which cannot satisfactorily be resolved without hearing testimony in oral form. It is also undesirable in these circumstances to discuss, far less to determine, the issues of law which are in dispute. That is best done once the oral testimony has been led and against further submissions made in the light of it.

[12] In these circumstances we shall continue the appeal with a view to oral testimony being led. In the circumstances it is preferable that it be led before all the judges who are to determine the appeal rather than before a single member of the bench. As requested by the Advocate Depute, we shall afford to the Crown an opportunity to consider whether oral testimony should be led by it in these proceedings. A procedural hearing will be fixed for an early date at which the Crown will be expected to intimate its position in that regard.