Scottish High Court of Justiciary Decisons

McIntosh v. Her Majesty's Advocate [2003] ScotHC 20 (14 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord MacLean	Appeal Nos: C318/02 XC138/02 OPINION OF THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by ROBBIE McINTOSH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Gray, QC, Anderson; Drummond Miller

Respondent: Lord Advocate (Boyd, QC), Johnson, AD; Crown Agent

14 January 2003

1. On 17 April 2002 at the High Court at Forfar the appellant was convicted of the following charge:

"on 2 August 2001 on the Law Hill, Dundee, at a wooded area adjacent to the path leading from Law Crescent, Dundee to Law Road, you Robbie McIntosh did assault Anne Valerie Nicoll, 70a Byron Street, Dundee and did stab her repeatedly on the head and body with a knife or similar instrument and stamp on her face and did murder her".

The appellant was aged 15 at the date of the offence. The trial judge sentenced him to be detained without limit of time with effect from 9 August 2001 and fixed a punishment part of 15 years.

2. The Crown case was entirely circumstantial. The appellant lodged a special defence in which he incriminated Robert Soutar. The appellant did not give evidence.
3. On 2 August 2001 at about 6 pm, the appellant left his home and made his way alone to Dundee Law, a nearby hill that was a popular place for recreation. Shortly thereafter Anne Valerie Nicoll (the deceased), who was then aged 34 years, left her father's house to take the family dog for a walk on the Law. More than an hour and a half later, the deceased's boyfriend, who had gone out to look for her, found her body in undergrowth a few yards from a footpath at a point less than 100 metres from the start of the footpath that went up the Law.
4. A number of witnesses said that shortly before the time of the murder they had seen a youth, dressed in a blue track suit and a blue baseball cap, moving around the Law on his own. This clothing was similar to that regularly worn by the appellant. There was evidence that the youth was staring at them in a way that aroused their suspicion and anxiety. One of these witnesses, Mrs. Christina Kerr, identified the appellant as resembling that youth. Other descriptions of the youth were more vague. All of these witness spoke to having seen only one youth.
5. The appellant went home thereafter, had a shower and changed his clothes. He then went to a nearby park on the other side of the Law where he joined a group of his friends. Later, at about 7.55 pm according to a cctv tape, he was seen to go into a local chip shop where he told the staff that there had been a murder on the Law and that the victim had been stabbed. This statement displayed special knowledge about the murder which at that time was known only to the deceased's boyfriend, the emergency services and the assailant himself.
6. On 4 August the appellant told a friend, Kenneth Craig Brown, that he had been alone at the park and had seen the woman's boyfriend walking up the path and finding the body. This conversation showed special knowledge about the circumstances in which the body was found.
7. On 4 August the appellant was twice interviewed by the police. During both interviews he said that he had been alone on the Law on the evening of the murder. At the first interview, he was asked to name the friends with whom he associated. He gave a number of names, but omitted to mention Robert Soutar or Dean Montgomery, both of whom were close friends. He said that he had walked up the Law shortly after 5 pm. On the way down he had seen someone resembling the deceased speaking to an elderly lady on the street, not far from the start of the path leading to the locus. He described the deceased's clothing. He said that he had seen a man resembling the deceased's boyfriend walking up the path towards the locus. He had seen him walking back down and using a mobile telephone. He then described the arrival of the ambulance and the police. He said that he started to walk up towards the locus to find out what was going on. The man that he had seen then came down and began to cry. The police then sent the appellant away.
8. At the second interview the appellant repeated his account of his movements before and after the time of the murder. He again said that he had been near the locus of the murder and had seen the deceased. He said that at the first interview he had omitted to mention that he had visited the public toilets at the Law during his walk.
9. The appellant's statement at this interview is set out in Crown production 48. It ends with the appellant's explanation for the fact that a T-shirt found by the police at his home was torn and bloodstained, namely that while wearing it he had had a fight with Soutar and Montgomery, whom he describes as being two of his friends. When the Crown led the evidence of the second interview, the advocate depute omitted this part of the statement by agreement with counsel for the appellant on the understanding that counsel for the appellant would withdraw an objection that he had taken to the admission of evidence about the whole statement.
10. On 8 August the appellant was detained by the police and again interviewed. This interview involved a more detailed consideration of the appellant's movements on the evening in question. The appellant was asked how he was able to tell the staff in the chip shop about the murder at a time when it was not public knowledge. He attributed that to "rumours."
11. On 8 October 2001, when he was in detention at Rossie School, the appellant told a residential care worker, Edwin David Dickinson or Dickson (named on the witness list as David Dickson), that he was not prepared to do time for a crime that he had not committed. He then gave Mr. Dickson an account of the murder. Mr Dickson kept a note of this account. The appellant said that he and Soutar had been sitting on Dundee Law using hash when the deceased walked past and said something to them. Before the appellant knew what was happening, Soutar stabbed the deceased. The appellant went straight home and changed. Then he went to the park where he saw police and CID officers. He said that he had been to a chip shop and had been able to tell the shopkeeper about the murder. The police had searched his house and found a sock with one spot of the deceased's blood on it. Although the police had previously suspected Soutar, they had not charged him with the murder because they found no clothes with blood. That was because Soutar had changed immediately afterwards. Finally, the appellant said that the police seemed to think that the woman was walking up the Law when she was attacked, but that she had in fact been walking down the Law.
12. The baseball cap worn by the appellant was found to have a faint bloodstain on the front and a cellular stain on the inside front of the brim and on the lining on the inside front. Analysis of these stains showed that they contained DNA from both the appellant and the deceased. The results were estimated to be one thousand times and nine hundred times respectively more likely if they were jointly the source rather than the appellant and an unknown female person. A bloodstain on the back of the ankle region of a sock worn by the appellant matched the DNA profile of the deceased. The probability of finding such matching profiles was in the order of one in 1,000,000,000,000. The stains on both the sock and the cap indicated contact, direct or indirect, between the material and wet blood.
13. In his charge to the jury, the trial judge referred to the evidential value of the statement made by the appellant to Mr Dickson as follows:

"Where a person is charged with a crime, and later makes a statement setting out a defence, that cannot be used by him as a form of evidence at his trial. You will readily understand why that is so. He wasn't on oath, he wasn't in a position to be questioned about it. The only use that can be made of that statement is to show whether the accused has been consistent or inconsistent in his position since the offence and throughout the investigation, or to show that his position has been consistent with other evidence. It is not evidence that Robert Soutar and he were together, and it is not evidence that Robert Soutar killed Anne Nicoll.

Now, it follows from what I have just said that there is no evidence before you that says in so many words that Robbie McIntosh and Robert Soutar were together at the time" (pp. 24 - 25).

14. After the jury had retired, a procedural mishap came to light. Copies of production 48, the record of the second police interview held on 4 August, had been prepared for the jury. In those copies the final passage relating to the bloodstained T-shirt was deleted, in accordance with the agreement of counsel. The jury had copies of production 48 when they retired. A spokesman for the jury sent for the Clerk of Court. He told him that a copy of production 48 in an unedited form had been given to one of the jurors and that four of the jurors had seen it. The Clerk advised the jury to cease their deliberations until he had consulted the judge. Having done so, the Clerk went to the jury room and retrieved the unedited copy. He then invited the jurors to resume their deliberations while the matter was raised with counsel. The advocate depute and counsel for the appellant were concerned at this turn of events and the trial judge decided to convene the court so that the matter could be considered. Almost immediately thereafter, the jury intimated that they had reached a verdict. Having consulted with the appellant, counsel for the appellant advised the trial judge that he was prepared to proceed to the verdict while reserving any potential argument in the matter for the appeal court.
15. The first ground of appeal is that the trial judge erred in failing to direct the jury that the statement that the appellant made to Mr. Dickson, which was evidence led by the Crown, was a "mixed" statement, that is to say a statement containing material that was capable of being both incriminatory and exculpatory (Morrison v HM Adv, 1996 JC 299; McCutcheon v HM Adv, 2002 SCCR 101) and therefore failed to direct them that they could take into account both the incriminatory parts and the exculpatory parts.
16. In his Report, the trial judge gives the following reasons for not having given such a direction.

"In my opinion the statement made to the witness Dickson was an entirely self-serving statement. It was an attempt by the appellant to explain his position. That required acknowledging that he was present at the scene of the crime. It is that acknowledgement which leads the appellant to claim that the statement is a 'mixed' statement. However, presence at the scene of a crime is of itself not an incriminating circumstance. In this case all that the appellant was doing by acknowledging his presence was setting the scene for the exculpation he tendered. Acknowledging presence in circumstances such as this is quite different from admitting intercourse and qualifying the admission as consensual or admitting stabbing and qualifying the stabbing as in self-defence.

The fundamental consideration behind allowing an accused person to rely on the exculpatory elements of a mixed statement is fairness to him. A jury can only evaluate the admission contained in such a statement if they are able to consider it along with any qualification. That consideration did not arise in relation to this statement.

The advocate depute led the evidence of the statement in fairness to the appellant. Had he not done so the jury may have had the wrong impression that Soutar was not incriminated until the appellant was indicted. For similar reasons the Crown, as a matter of policy, routinely lead evidence of wholly exculpatory replies to caution and charge."

17. The Lord Advocate adopted the reasoning of the trial judge. He confirmed that the Crown had led the evidence simply to provide the jury with the full background.
18. The point is a short one. In my opinion, the question does not depend on the appellant's purpose in making the statement, nor on the Crown's purpose in leading evidence of it (McCutcheon, supra, at p. 115 C-D). The test is whether the statement, considered objectively, was in any way incriminatory in its effect. In my opinion, the statement, although intended to be exculpatory, was nonetheless incriminatory in three material respects the significance of which had emerged at the trial. First, it put the appellant at the scene of the murder at the time at which it was being committed. Second, it did so in the context of the evidence of several witnesses who said that they saw only one youth in the vicinity of the locus at the material time. Third, it represented a significant change in the appellant's previously consistent account that he had been alone on the Law. The trial judge alluded to this consideration in the passage from his charge that we have quoted. Looked at in the light of the whole evidence, these were materially incriminating considerations. I conclude therefore that the statement was a mixed statement and that the trial judge should have directed the jury to that effect and advised them as to its evidential implications.
19. To succeed on this ground of appeal, however, the appellant must satisfy the court not only that there was a misdirection in this respect, but that as a result of it there was a miscarriage of justice. I am satisfied that there was no such miscarriage in the circumstances of the case. The evidence against the appellant, although circumstantial only, was compelling. The special knowledge statements and the forensic findings were particularly powerful evidence against him.
20. The second ground of appeal relates to the procedural mishap. Counsel for the appellant submitted that the full version of production 48 which some of the jury had seen had cast doubt on the suggestion that he had made to the jury that the appellant's failure to mention to the police that Soutar and Montgomery were his friends indicated that he was distancing himself from Soutar out of a mad, misplaced sense of loyalty.
21. The trial judge is critical of counsel for having made that suggestion. In his Report he comments that the significance of the excluded passage in production 48 occurred to him when he was preparing his charge. He says:

"In the course of reviewing the speeches and the evidence I noted in particular that part of page 6 and page 7 of the statement (sc. the part of production 48 which the Crown had excluded) had not been led in evidence. That concerned me, since I considered that what was said there flew in the face of Mr Gray QC's submission to the jury for the appellant that the appellant's failure to mention Soutar and Montgomery in his statement given earlier that day indicated that he was already distancing himself from the incriminee Soutar, thus showing a mad misplaced sense of loyalty to him. It was also contradicted by the evidence of Gareth Ferguson that on 3 August the appellant was in the company of both Soutar and Montgomery. The jury could have been misled by Mr Gray's submission. I also considered that, even if the appellant had not referred to Soutar in production 48 and had not been with him on 3 August, the omission of his name from a list of associates in his first police statement did not warrant the conclusion that Mr Gray invited the jury to draw. His submission was pure speculation."

The trial judge says that for these reasons he gave the jury a direction that there was no evidence in the case on the basis of which they could reasonably conclude that the accused's reason for not naming Soutar as the murderer in any of his earlier statements was a mad, misguided sense of loyalty.

22. agree with the trial judge's view on this point and with his comments. In my view, he was right to direct the jury as he did. If counsel decides not to lead the accused as a witness, it is improper for him to suggest to the jury an account or an explanation of facts to which the accused could himself have spoken. That principle is well known and well understood. On this occasion it was clearly transgressed. Worse still, as the trial judge recognised, the explanation that counsel suggested to the jury for the appellant's failure to name Soutar was at odds with what the appellant had said in the passage in production 48 that the advocate depute had excluded at the behest of counsel for the appellant.
23. In my opinion, it is not open to counsel to argue that the procedural mishap prejudiced the jury's consideration of a submission that it was not proper of him to have made to them.
24. In any event, I consider that this ground of appeal is without foundation. Like the trial judge I find it difficult to see why the whole statement should not have been led. The passage shown in the rogue copy of the production was of no great significance to the case for or against the appellant. The question of the bloodstained T-shirt was a side issue, if it was an issue at all. The Crown did not suggest that that evidence was any part of the Crown case.
25. If this ground of appeal had had any substance, I would have held, for the reasons that I have given in relation to the first ground of appeal, that the mishap did not lead to a miscarriage of justice.
26. propose therefore that we should refuse the appeal.
McIntosh v. Her Majesty's Advocate [2003] ScotHC 20 (14 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord MacLean	Appeal Nos: C318/02 XC138/02 OPINION OF LORD KIRKWOOD in APPEAL AGAINST CONVICTION by ROBBIE McINTOSH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Gray, QC, Anderson; Drummond Miller

Respondent: Lord Advocate (Boyd, QC), Johnson, AD; Crown Agent

14 January 2003

27. am in full agreement with the Opinion of your Lordship in the chair and there is very little I wish to add.
28. So far as the first ground of appeal is concerned, the appellant, in earlier interviews, had admitted being on the Law on the evening in question and near the place where the crime was committed. However, when he spoke to Mr. Dickson on 8 October 2001 he admitted for the first time that he had actually been present when the murder was committed. That was, in my opinion, a new and highly incriminating admission by the appellant which went considerably beyond his earlier admissions, particularly in the context of other evidence that there had only been one youth in the vicinity of the locus at about the time when the murder had been committed. The Crown led the evidence of what the appellant had said to Mr. Dickson and have to be taken as relying on it for the incrimination of the appellant (McCutcheon v. H.M. Advocate 2002 S.C.C.R. 101 per the Lord Justice General (Cullen) at page 115C-D). It may well be that the appellant's motive in making that admission was to set the scene for the exculpatory part of his account but, whatever reason he had for making the admission, I am in no doubt that what he said to Mr. Dickson was a "mixed" statement and that the trial judge should have directed the jury in accordance with the guidance given in Morrison and McCutcheon.
29. With regard to the second ground of appeal, the appellant did not give evidence and his counsel submitted to the jury that the appellant's failure to mention Soutar and Montgomery in the first statement which he gave to the police on 4 August indicated that he was already distancing himself from the incriminee, Soutar, thus showing a mad, misplaced sense of loyalty to him. Not only was that submission pure speculation, but it was made in the knowledge that it had been agreed that the last part of production 48, the record of the appellant's second statement to the police on 4 August, would be omitted when it was placed before the jury, the omitted section having contained a statement to the effect that Soutar and Montgomery were his friends. In these circumstances I agree with your Lordship in the chair that the submission should never have been made, and that counsel for the appellant cannot now be heard to say that the procedural irregularity involving production 48 had prejudiced the jury's consideration of that submission. It follows that this ground of appeal is without merit and that the trial judge was right to give the direction which he did.
McIntosh v. Her Majesty's Advocate [2003] ScotHC 20 (14 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord MacLean	Appeal Nos: C318/02 XC138/02 OPINION OF LORD MacLEAN in APPEAL AGAINST CONVICTION by ROBBIE McINTOSH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

Appellant: Gray, QC, Anderson; Drummond Miller

Respondent: Lord Advocate (Boyd, QC), Johnson, AD; Crown Agent

14 January 2003

30. On 8 October 2001 the appellant had a conversation with a residential care worker at Rossie School, where he was then detained. The care worker, following his conversation with the appellant, compiled a statement (Crown Production 59), which bears to record the conversation between himself and the appellant. It appears from the statement that the care worker's name is David Dickinson and I will refer to him by that name.
31. The trial judge says in his report that when Mr Dickinson gave evidence he read the statement from the third paragraph to the end of page 1. In that passage the appellant said, it would appear for the first time, that he was sitting on Dundee Law with Robert Soutar, whom he later incriminated, using hash, when Anne Nicoll walked past them. She said something to them to which Robert Soutar responded by stabbing her. Mr Dickinson recorded the appellant saying "It seemed to happen as quick as a flash, but it couldn't because she was stabbed 36 times". According to the appellant, Robert then ran off leaving him at the locus of the murder.
32. Up to that point in October 2001, all the information gathered by the police had indicated that only one person had been seen behaving strangely on the Law at the time when Miss Nicoll was walking her dog there. In his previous statements to the police the appellant had said that he had been on the Law at the material time on his own.
33. For a person to admit that he was present at the scene of a crime may not, by itself, be incriminating. I agree, however, with your Lordship and for the reasons which your Lordship gives, that it was undoubtedly incriminating for the appellant to admit his presence at the locus, when the whole investigative background and information at the time of the statement are considered. I am clear that the statement which he made in conversation with Mr Dickinson, must properly be characterised in law as a mixed statement. I also agree with your Lordship that, notwithstanding the trial judge's failure to identify this as a mixed statement and his failure to give an appropriate direction about the statement in his charge, there was in the circumstances no miscarriage of justice.
34. Your Lordship has set out the circumstances in which the unexpurgated edition of the appellant's statement (Crown Production 48) reached the jury. Like your Lordship, I had considerable difficulty in understanding Mr Gray's submission with regard to the prejudice said to have been suffered on the part of the appellant by the inclusion in the statement of the passage on pages 6 and 7 which was excised by agreement of counsel. Nor am I able to follow Mr Gray's submission with regard to the general objection he says he would have made about the way in which the statement was obtained, which the excising of the passage in some way alleviated.
35. In the excised part the appellant refers to Robert Soutar and Dean Montgomery as two of his friends with whom he had fought recently, which accounted for the state of his T-shirt, which was found in his house by the police, being torn and bloodstained. The state of the T-shirt had no relevance to the violent death of Miss Nicoll which the police were then investigating. The only reasonable inference that can be drawn is that for some reason Mr Gray did not wish there to be evidence before the jury that on 4 August 2003 when the statement was given, the appellant had mentioned his two friends Robert Soutar and Dean Montgomery. In the course of the trial, evidence was led without challenge that Robert Soutar and Dean Montgomery were friends of the appellant and that he had been in their company on 3 August, the day after the murder.
36. The trial judge in his report tells us that Mr Gray submitted in his speech to the jury that the appellant's failure to mention Soutar and Montgomery as friends of his in his first statement to the police made on 4 August 2001 at about 9.20 am, indicated that he was already distancing himself from the incriminee, Soutar, thus showing a mad, misplaced sense of loyalty to him. That could not have been said if the whole terms of the second statement made on the same day about 10.45 pm, had been before the jury. That, said the trial judge, concerned him.
37. It also concerns me. There was no suggestion that the appellant had not said what the police had recorded on pages 6 and 7 of the statement the appellant gave at 10.45 pm on 4 August 2001. So Mr Gray knew what the appellant had then said about Soutar and Montgomery being his friends. What the appellant had not done was to mention them when asked who his friends were at the time the earlier statement was given on 4 August 2001. So far as the evidence went, however, the jury must have thought that he had not mentioned them and, in particular Soutar, in either statement.
38. The appellant did not give evidence. It is quite clear to me that the only person who could have informed the jury about the reason for not mentioning Soutar and Montgomery as his friends, and Soutar in particular, was the appellant himself. The trial judge in my view was entirely correct when he directed the jury in his charge that what Mr Gray had done was to indulge in speculation. He said, correctly, that there was no evidence in the case on the basis of which the jury could reasonably conclude that the reason advanced by Mr Gray was the reason why the appellant had not named Soutar as one of his friends.
39. What the jurors - all four of them - saw in the unexpurgated version of the second statement may, to use the language of the appellant's ground of appeal, have placed in jeopardy Mr Gray's submission. But that submission, in my opinion, should never have been made in the first place. Only the appellant could have given evidence about the reasons for not mentioning Soutar on 4 August 2001 as one of his friends, and it was not proper for Mr Gray to speculate upon the appellant's reasons without the appellant himself giving evidence.
40. agree with your Lordship that this ground of appeal is without substance and, in any event, even if it were well founded, that there has been no miscarriage of justice.