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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> MacDonald v. Her Majesty's Advocate [2003] ScotHC 60 (28 October 2003)
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Cite as: [2003] ScotHC 60
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MacDonald v. Her Majesty's Advocate [2003] ScotHC 60 (28 October 2003)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lady Cosgrove Lady Smith
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Appeal No: XC459/03 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by LESLIE JAMES MacDONALD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; George Mathers & Co., Aberdeen
Respondent:
Clancy, Q.C., A.D.; Crown Agent28 October 2003
[1] On 8 February 2000 the appellant was found guilty of the murder of Moses Drummond at a house in Inverness on 17 September 1999. The charge on which he stood trial alleged that he did "repeatedly strike him on the body with a knife and repeatedly stamp on his head and body". The jury convicted the appellant under deletion of the words "and repeatedly stamp on his head and body".[2] The appellant appealed against his conviction. This court has already rejected a ground of appeal which claimed that the trial judge had misdirected the jury. We now require to consider the remaining ground of appeal which is based on evidence which was not heard at the trial.
[3] At the outset it is convenient to outline the evidence which, according to the trial judge's report, was heard by the jury. On 17 September 1999 the deceased, who was 27 years of age, spent some time at the house in the company of the appellant and three girls aged between 16 and 17. They were all drinking in the livingroom. According to the evidence of the girls, at one point the deceased took exception to the appellant flirting with one of them and grabbing or touching her on the legs. There then developed a degree of atmosphere between them. The deceased appeared to challenge the appellant to some arm wrestling and knocked glasses off a coffee table. One of the girls noticed that by this time the appellant had a knife in his side pocket, from which she slid it out. The deceased was heard to tell the appellant to leave the house. The appellant went through to the kitchen. He was followed by the deceased and the girls, one of whom saw him trying to open a drawer in the kitchen. The appellant left by the back door and turned to his right to go round the house and make his way to the front garden. The deceased followed him and the three girls were behind him. The two men were seen to be facing each other at the side of the house, with their hands on each other's shoulders. The evidence of two of the girls, Margaret Allan and Jane Miller, was that they saw the appellant make a forward stabbing motion with a knife to the deceased's chest. The third girl, Nicola McIntosh, gave evidence that she did not see that. However, all three girls gave evidence of being aware of the deceased turning and saying "He's just plunged me". Thereafter the appellant went to the front garden and two of the girls followed in order to try to get an ambulance and help. Margaret Allan and Jane Miller described the appellant going back up the path from the front garden after the deceased had apparently been wounded in the chest. Nicola McIntosh gave evidence that he had gone back a few times. The trial judge in his report states that the evidence suggested that he had gone back to where the deceased must have been, although one of the girls tried to stop him. He still had a knife in his hand at that stage. Margaret Allan and Nicola McIntosh gave evidence as to the appellant stamping repeatedly on the head and body of the deceased. At about this time a neighbour heard a male voice shouting "Fuck the Drummonds, I'm sick of them, I'm the man now". Another neighbour heard a male voice shouting "I hate the Drummonds, I'm going to kill all of them".
[4] Post mortem examination of the deceased disclosed three stab wounds. One of them was to the chest and was some 10 cms. in length. It penetrated the breast bone and transfixed the heart and the aorta. There were two wounds to the back. One was below the lower end of the scapula and was some 9.8 cms. in length. It penetrated the chest wall and pierced a branch of the pulmonary artery. The other was over the right scapula. It was 5.5 cms. in length and involved only the soft tissues. Both of the first two wounds were wounds which caused death by internal haemorrhage. The evidence of a pathologist was that quite considerable force would have been required to cause the chest wound. All of the wounds could have been caused by the same knife. The blood alcohol level of the deceased was 280 mgs. per 100 mls. There was also evidence from the pathologist which supported the view that the deceased had been stamped on.
[5] The appellant did not give evidence. However, the court heard the text of the transcript of his judicial examination on 20 September 1999. He gave an account that the deceased
"turned aggressive on me and eh I tried to get out of the house but Mosie followed me and asked me what I was doing and I just said I was going into the kitchen to get a, a cup. So when I went into the kitchen I picked up a knife that was lying on the counter and then I, then I opened the back door and ran out the back door. And Mosie and a few girls who were there ran out after me and I tried to shut the gate but Mosie opened the gate and he lunged at me and the knife went into his body".
The appellant said that it had been an accident and that he had not intended to strike the deceased with the knife. As far as he was aware, he had made contact only once. On the basis of that account it was contended on behalf of the appellant at the trial that the deceased had been injured in the chest accidentally or as a result of the appellant acting in his own defence. In a special defence it was stated on behalf of the appellant that
"on the occasion libelled he was acting in self-defence to the extent of his having attempted to run away from the said Moses Drummond and then holding out a knife to protect himself, he having been pursued by the said Moses Drummond who then lunged at the appellant and was injured".
It was further contended for the appellant that in any event the jury should not convict the appellant of more than culpable homicide, either on the basis that he had acted under provocation or on the ground that the Crown had failed to prove that he had acted with the necessary murderous intent.
[6] As regards the two stab wounds to the back of the deceased, the Crown invited the jury to infer that the appellant had delivered them when he went back to where the deceased must have been. It is our understanding that the appellant did not offer any account of his actions after the point at which his knife went into the deceased's chest.[7] It is evident that in convicting the appellant in the terms in which they did, the jury not only rejected the arguments which had been presented on behalf of the appellant in regard to the circumstances in which the knife entered the chest of the deceased but also accepted the contention of the Crown that they should infer that the appellant was responsible not only for that wound but also for the two wounds to the back of the deceased. This was indicated by their inclusion of the word "repeatedly". At the same time it is clear that, for whatever reason, the jury declined to find it proved that the appellant had repeatedly stamped on the deceased's head and body.
[8] The additional evidence on which the appellant seeks to found is that of Alexander Scullion, who is a step-uncle of the appellant and is about 6 or 7 years older than him. The appellant has tendered an affidavit which was sworn by Mr. Scullion on 10 August 2001. According to that affidavit, he heard shouting and bawling coming from the direction of the house. He went through a field to find out what the noise was. It was only about 50 yards. At the back of the house he saw the deceased and the appellant. The affidavit then states:
"They were facing each other. Moses appeared to be very aggressive towards Les. Moses had his back towards me. Nicola McIntosh was also there. She was the only person who was anywhere near Moses. She was standing behind Moses. I saw Nicola strike Moses on the back. I couldn't say that I saw a knife but I definitely saw her strike Moses. I heard Moses say 'I've been plunged'. I then ran away".
"due to the threats and fear for my safety. I never told anyone else about what I saw that night. I feel I can come forward now as they are both in jail".
The reference to "both" appears to relate to both Nicola McIntosh and her mother.
[10] We should add that Mr. Scullion also states in his affidavit that earlier in the day, in the course of the afternoon, he had been with the appellant at another house where he had slipped four or five diazepam tablets into the appellant's drink, and that thereafter the appellant had been "legless".[11] Before coming to the main arguments which were presented, we should set out what we understood to be the purpose for which reliance is placed on the evidence which it is said that Mr. Scullion could give. In a case in which reliance is placed on the availability of additional evidence it is not normally necessary to examine this question since the purpose is obvious, but in the present case the terms of the ground of appeal and of Mr. Scullion's affidavit are such as to cause uncertainty and confusion.
[12] From the terms of Mr. Scullion's affidavit we have a brief description of a confrontation between the appellant and the deceased. We assume for present purposes that what he says is both credible and reliable. What does it describe? Such detail as he gives suggests that it might well be the confrontation in which, on the appellant's account, his knife entered the chest of the deceased. The deceased is facing and behaving aggressively towards the appellant. He states that he has been "plunged". There is nothing to suggest that he had already been stabbed. No knife is seen in the hands of Nicola McIntosh. We should add that it is evident from the terms of the ground of appeal that the person who drafted it considered that the evidence of Mr. Scullion
"could very well have fitted into the legal requirements of the defence of accident or the special defence resulting in acquittal; or, alternatively, the defence of provocation resulting in a verdict of culpable homicide".
[14] The court requires to be satisfied that there is a reasonable explanation of why that evidence was not heard at the trial (section 106(3A) of the Criminal Procedure (Scotland) Act 1995). Mr. Shead accepted that Mr. Scullion had been listed as a defence witness at the trial, but was not called to give evidence. A statement had been taken from him by the appellant's solicitors, but it had subsequently gone missing. Mr. Shead was unable to say what it contained or even whether or not it contained a statement that he had been present at the scene. Mr. Scullion was not on the list of Crown witnesses for the trial. Mr. Shead understood that he had been interviewed by the police. It could hardly be supposed, he said, that he had given the police an account which corresponded to what was contained in his affidavit, since in those circumstances the Crown would surely have led his evidence at the trial.
[15] Mr. Shead submitted that the reasonable explanation for the fact that his evidence was not heard at the trial was, as his affidavit stated, his fear of the family of the deceased and the threat made by the mother of Nicola McIntosh. It is true that she and her mother were no longer in custody, but there was no reason to think that he would not speak to the matters set out in the affidavit. If someone such as Mr. Scullion was capable of exculpating the appellant but chose not to do so, there was nothing which the representatives of an accused person could do about that. The fact that he was willing to give this evidence had come to the knowledge of the appellant's solicitors through hearing from the appellant's mother that Mr. Scullion was anxious to speak about it. This was about two weeks before Mr. Scullion's statement was taken on 28 July 2001. Mr. Shead asserted that the materiality and relevance of Mr. Scullion's affidavit could not be in doubt. The court should take a broad and flexible approach to this matter (Campbell v. H.M. Advocate 1998 J.C. 130 per the Lord Justice Clerk at page 147). Mr. Shead said that on a number of occasions since the ground of appeal had been received by the court on 7 August 2001, the appeal had been continued at the instance of the appellant for further investigations, including an attempt to obtain an affidavit from Nicola McIntosh. She had ultimately been traced in May 2003, and in the following month she had sworn an affidavit in which she had denied stabbing the deceased and denied that there was any other person standing in the area where the incidents had taken place.
[16] In reply the Advocate depute emphasised that the onus was on the appellant to provide the court with a reasonable explanation as to why the additional evidence which was relied on was not heard at the trial. The explanation had to be genuine, adequate and plausible (see Campbell v. H.M. Advocate). It was for the appellant to demonstrate that he had no good reason to think that Mr. Scullion would incriminate Nicola McIntosh. This involved a scrutiny of the way in which those who represented the appellant had approached the presentation of the defence at the trial.
[17] The Advocate depute pointed out that Mr. Scullion had been interviewed by the police on three occasions, namely 15 and 26 October and 21 November 1999. On these occasions he did not mention having been at the locus or seeing anything of what happened, but told the police that he had "spiked" the appellant's drink with diazepam and regretted doing so. This was at a different address. On the last of the occasions when he was interviewed he was informed by the police that there was no trace of diazepam in the appellant's blood and stated that he may have "spiked" the drink of someone else.
[18] The Advocate depute went on to point out that, since the appellant had accepted only that he had inflicted one knife wound on the deceased, it must have been considered by his representatives that the two back wounds were inflicted by someone else. For this there were only three possible candidates, namely the girls. At the trial counsel for the appellant had cross-examined each of them as to whether one of them, and in particular Nicola McIntosh, had picked up a knife near the point where there had been the confrontation between the appellant and the deceased. She was not the subject of a special defence of incrimination. In the material before this court there was a complete lack of explanation for the approach taken by the defence at the trial to the evidence that the deceased had been stabbed twice in the back, and for the line taken in the cross-examination of the girls.
[19] The Advocate depute went on to submit that the appellant had failed to give any explanation as to why he had been unable to assert that someone else had been responsible for the two wounds to the back of the deceased. He referred to the terms of the appellant's judicial examination, which we have quoted earlier, and to the text of the police interview of the appellant on 20 September 1999. This took place shortly after the appellant had appeared on a petition which libelled the murder charge and alleged that he had repeatedly stabbed the deceased. At that interview the appellant stated that two or three girls were present at the confrontation with the deceased but were not involved, adding that they were trying to get the deceased to leave him alone and to pull him away. He added that on the day before (i.e. 19 September 1999) he had found out through his mother that Mr. Scullion had "spiked" his drink. The Advocate depute submitted that there appeared to be no good reason why the appellant should not be able to say that someone else had stabbed the deceased in the back. There was no suggestion that the appellant could not see what the girls were doing or that his memory was impaired.
[20] The Advocate depute added that, in his submission, it was inherently improbable that Mr. Scullion, who was related by marriage to the appellant and was not well disposed towards the deceased, would have suppressed evidence if it was truly vital for the defence of the appellant. According to the appellant's judicial examination he had spoken to the appellant's mother shortly after the incident. It was inconceivable that he would not have told her about what he saw, and it was inherently implausible that this would be outweighed by the fact that he had been threatened by the mother of Nicola McIntosh.
[21] At this stage we have to consider whether the appellant has produced sufficient material to demonstrate a reasonable explanation as to why the evidence of Mr. Scullion, as foreshadowed in his affidavit, was not heard at the trial. If there were such a reasonable explanation, the court would require to consider whether that was significant evidence, in the absence of which there was a miscarriage of justice.
[22] In our view there was considerable force in the argument presented by the Advocate depute as to the lack of explanation by the appellant as to the way in which the evidence of Mr. Scullion had been regarded at the trial. Even if the statement which had been taken from Mr. Scullion was mislaid, the court has not been provided with any other information, oral or written, as to the evidence which it was understood that he could give at that time. From the account given by the Advocate depute of the line taken by counsel for the appellant at the trial it appears that there was interest in the question whether one of the girls including Nicola McIntosh had a knife in her hand at any stage. However, it is impossible to know what significance was being attached to that matter. It is worth recalling at this point that in Barr v. H.M. Advocate 1999 S.C.C.R. 13 the Lord Justice Clerk pointed out at page 18 the desirability and importance of the appeal court being provided with information as to the state of knowledge of those who represented the appellant at the trial and their reasons for thinking that no further enquiries were called for. Reference is made to these observations in Renton & Brown on Criminal Procedure, paragraph 29-36.
[23] However, the difficulty in showing a reasonable explanation does not stop there. If Mr. Scullion is correct in the affidavit which he has sworn and on which reliance is placed by the appellant, the appellant was present when the deceased was allegedly struck on the back by Nicola McIntosh. If that is so, why should the appellant not have known that Scullion was present and was able to give evidence about what he saw happening? In these circumstances the appellant requires to explain his position and to show that at the time of the trial he had no good reason for thinking that Mr. Scullion could give the evidence in question. There is, however, no such information before us. Nor is there any material put before us to explain the state of the appellant's knowledge in regard to the stage at which the deceased was stabbed in the back. Once more, despite the fact that almost two years has elapsed since the ground of appeal was tabled along with the affidavit of Mr. Scullion, nothing further has been provided by way of support. We would add that it would not avail an appellant in seeking to demonstrate a reasonable explanation why certain evidence was not heard at his trial if it appeared that this evidence might not have been led even if it had been available at the time of the trial. In the present case the evidence which Mr. Scullion is apparently able to give would have been in conflict with the position adopted by the appellant, namely that no one else was involved and that the girls were simply trying to pull the deceased away. In addition there is the uncertainty as to the incident which Mr. Scullion purports to have witnessed, to which we have referred earlier in this opinion.
[24] During the course of his submissions Mr. Shead contended that, although the process of lodging affidavits was helpful, it was more useful to hear oral evidence. The Advocate depute rightly criticised this approach as involving the submission that it was enough if there might be a reasonable explanation. We are in no doubt that it requires to be clearly understood that before any question arises of hearing additional evidence the court requires to be provided with a reasonable explanation why the additional evidence was not heard at the trial. In the present case our conclusion is that the appellant has simply failed to provide a satisfactory explanation for the fact that this evidence was not heard at the trial.
[25] In these circumstances we reject this ground of appeal, and refuse the appellant's appeal against conviction.